TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 39. PUBLIC NOTICE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §39.411 and §39.603.

The amendments to §39.411 and §39.603 are adopted with changes to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5331) and, therefore, will be republished.

The amendments to §39.411(e)(4)(A)(i), (e)(5) (introductory paragraph), (e)(11)(A)(iv) and (v), (e)(13), (f) (introductory paragraph), (f)(8), and (g); and §39.603 will be submitted to the United States Environmental Protection Agency as revisions to the State Implementation Plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rules

On February 25, 2016, Texas Aggregates and Concrete Association (TACA) submitted a petition requesting the commission conduct rulemaking to amend public notice rules applicable to initial registration applications for authorization under the Air Quality Standard Permit for Concrete Batch Plants, referred to in this preamble for ease of reference as the CBP standard permit. This permit is distinguishable from the Air Quality Standard Permit for Concrete Batch Plants with Enhanced Controls, which has different notice and public participation requirements. The petition requested amendments to §39.411(e)(11)(A)(iii) and §39.603(a) and (b) to provide for one 30-day public notice of initial registration applications. On April 6, 2016, the commission considered the petition and directed the executive director to examine the request and initiate rulemaking.

The TACA petition did not address the Air Quality Standard Permit for Concrete Batch Plants with Enhanced Controls authorized under Texas Clean Air Act (TCAA), Texas Health and Safety Code (THSC), §382.05198. The public notice requirements for that standard permit are listed within the permit, and registrations for that permit are not subject to the rules in Chapter 39. Therefore, public notice requirements for that permit are not affected by this adopted rulemaking.

The commission is authorized to adopt standard permits under THSC, §382.05195, which prescribes the procedures the commission must follow to adopt a standard permit. The commission implemented THSC, §382.05195 by adopting rules in 30 TAC Chapter 116, Subchapter F. The rules in Chapter 116, Subchapter F provide that when the executive director drafts a new (or proposes amendments to an existing) standard permit, notice of the proposed permit is published in the Texas Register and in newspapers. In addition, TCEQ holds a public meeting to provide stakeholders the opportunity for discussion with TCEQ staff and for submittal of comments regarding the proposed permit. The responses to comments and any changes made to the proposed permit in response to the comments are presented to the commission for consideration in an open meeting, commonly referred to as Agenda. Once adopted, the conditions of the permit will be the same for all owners and operators that register to construct and operate under the standard permit. The standard permits are not designed to be amended to include tailored permit conditions applicable to an individual registration. The CBP standard permit was last amended by the commission effective December 21, 2012.

Each individual CBP standard permit registration application is subject to the public participation requirements in 30 TAC Chapters 39 and 55. Since 1985, owners or operators registering for authorization to construct and operate a concrete batch plant (under what is known today as the Air Quality Standard Permit for Concrete Batch Plants) have been subject to specific notice requirements for the proposed plant. These public notice requirements for initial registration applications included the opportunity to request a contested case hearing. In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which made changes to notice requirements for initial registration applications that were administratively complete on or after September 1, 1999. Since the rulemaking to implement HB 801 in 1999, and rule amendments adopted in 2010 have been in effect, the commission has required registrants for the CBP standard permit to publish a Notice of Receipt of Application and Intent to Obtain Permit (NORI) which solicits comments for a 15-day period; contested case hearing and public meeting requests are also solicited. At the same time the NORI is published in a newspaper of general circulation in the municipality or in the nearest municipality in which the plant will be located, the registrant is required to place a copy of the registration application in a public place in the county, and to post signs at the proposed facility location. Alternative language publication and signs may also be required.

After TCEQ staff complete the technical review, registrants were required to publish Notice of Application and Preliminary Decision (NAPD), which solicits comments for a 30-day period; hearing requests were also solicited but only if at least one such request was timely made in response to the NORI. At the close of the comment period, the executive director prepares a written response to all timely-filed comments and files the response with the TCEQ's Office of Chief Clerk. If hearing requests were submitted in response to the NORI, hearing requests may be submitted during the 30-day period after the mailing of the executive director's response to comments. Based on comments, registrants may update their registration application representations as to how they will construct and operate under the standard permit; historically, this has been very uncommon. Also, because the permit conditions in the CBP standard permit are established by the commission when the standard permit is adopted, the executive director cannot change any permit conditions for an individual registration in response to comments.

The public has expressed concern that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or contested case hearing, and then to timely submit the information to the TCEQ. This rulemaking requires one 30-day consolidated notice for registrants of the CBP standard permit that will serve as both the NORI and NAPD. To ensure the public has the opportunity to review a complete registration application, the consolidated notice will be published after the administrative and technical reviews of the registration application are completed. The consolidated notice establishes a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. With one notice instead of two, TCEQ expects there will be more clarity regarding the restrictions on the timeframe to submit hearing requests.

Concurrently with this adoption, and published in this issue of the Texas Register, the commission is adopting an amendment to §55.152 in Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment, to provide for a 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted in response to the consolidated NORI and NAPD. The 30-day period begins on the last date of newspaper publication, and the comment period is automatically extended to the close of any public meeting, as required by §55.152(b). As provided for in §55.201, which implements Senate Bill 709 (84th Texas Legislature, 2015), hearing requests must be based on the requestor's timely submitted comments.

The public participation requirements for renewals of registrations under the CBP standard permit are not affected by the adopted amendments in Chapters 39 and 55.

Section by Section Discussion

In addition to the amendments discussed later, the adopted rulemaking also includes various stylistic, non-substantive changes to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. These changes are non-substantive and generally not specifically discussed in this preamble. Specifically, §§39.411(e)(11)(A)(iv), 39.411(e)(13), and 39.603(c) were amended to reflect the actual name of the CBP standard permit, which is "Air Quality Standard Permit for Concrete Batch Plants."

§39.411, Text of Public Notice

Clause (iv) is added to §39.411(e)(11)(A), which amends requirements for the notice text for initial registration applications received on or after January 1, 2017, for concrete batch plants that register to operate under the CBP standard permit. The adopted clause states that the text of the notice shall include three statements, adopted as subclauses (I(III). First, a request for a contested case hearing must be filed with the TCEQ's Office of Chief Clerk before the close of the 30-day comment period following the last publication of the consolidated NORI and NAPD. Second, if no hearing requests are received by the end of the 30-day comment period, there is no further opportunity to request a contested case hearing. Third, if any hearing requests are received before the close of the 30-day comment period, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments. Existing clause (iv) is re-designated as clause (v).

Subsection (f) is amended to add a reference to the consolidated notice adopted in §39.603(c). In addition, because the effective date of §39.411 will change, the references to "the effective date of this section" in §39.411(e)(4)(A)(i) and (ii), (e)(5), (f)(8) and (9), and (g) are updated to provide for the precise date of June 18, 2010, which is the actual effective date for these particular requirements.

§39.603, Newspaper Notice

Adopted §39.603(c) provides that, for initial registration applications received on or after January 1, 2017, for authorization to construct and operate a concrete batch plant under the CBP standard permit, owners and operators are required to publish a consolidated NORI and NAPD. The consolidated NORI and NAPD must be published no later than 30 days after the chief clerk has mailed the preliminary decision concurrently with the consolidated NORI and NAPD to the registrant. In addition, the new consolidated notice must contain the text as required by §39.411(f).

Existing subsections (c) - (e) are re-lettered as subsections (d) - (f). References to "registrant" are added to subsections (d) - (f) to ensure that these requirements also apply to initial registration applications for the CBP standard permit.

Final Regulatory Impact Analysis Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to Chapter 39 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure to air pollutants, but instead amend the notice requirements for initial registration applications for concrete batch plants under the CBP standard permit, which are procedural in nature.

As defined in the Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: exceed a standard set by federal law, unless the rule is specifically required by state law; exceed an express requirement of state law, unless the rule is specifically required by federal law; exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking action does not meet any of these four applicability requirements of a "major environmental rule." Specifically, the adopted amendments to Chapter 39 amends the notice requirements for initial registration applications for the CBP standard permit authorizations. This adopted rulemaking action does not exceed an express requirement of state law or a requirement of a delegation agreement, and was not developed solely under the general powers of the agency, but was developed to meet the requirements for public participation in the TCAA as identified in the Statutory Authority section of this preamble.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the Draft Regulatory Impact Analysis Determination.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007, is applicable. The adopted rulemaking to Chapter 39 amends the notice requirements for initial registration applications for concrete batch plants under the CBP standard permit, which are procedural in nature. Promulgation and enforcement of the adopted rulemaking will not burden private real property. The adopted amendments do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will the amendments affect any action or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted amendments are not subject to the Texas Coastal Management Program (CMP).

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the consistency with the CMP.

Effect on Sites Subject to the Federal Operating Permits Program

The adopted rules will not require any changes to outstanding federal operating permits.

Public Comment

The commission held a public hearing on August 10, 2016. The comment period closed on August 22, 2016. The commission received comments from Texas State Representative Alma Allen (Representative Allen), the City of Dallas, the City of Houston, TACA, and the United States Environmental Protection Agency, Region 6 (EPA).

Response to Comments

Changes in the Number of Notices and the Amount of Time to Submit Comments and Requests for a Contested Case Hearing

Comment

Representative Allen commented that while she does not believe that TCEQ's intent in helping the operators reach their goal for one notice is to shorten the time within which the community is able to organize and provide feedback, the shorter time is the most egregious consequence of this proposal.

The City of Houston commented that the current rules grant community members and citizens a valuable window of opportunity to evaluate the potential consequences of the plant proposed in their communities. They are able to obtain, review, and present information about the negative effects concrete batch plants have on communities. Shortening the notice period will burden citizens by limiting their opportunity to participate in important registration and permitting decisions. For those in socioeconomically disadvantaged communities who historically have had less of a voice in public processes and who have fewer resources to deploy to protect themselves, the burden will be particularly onerous.

The City of Dallas commented that the proposed rules place the interests of industry above protection of public health and the environment. There is no benefit to the public by limiting their right to participate in the process of TCEQ review of air permit applications for concrete batch plants.

Response

This rulemaking was not intended to adversely affect anyone's opportunity or ability to comment on a concrete batch plant registration application, or their ability to ask questions of a registrant who is seeking approval to construct and operate under the CBP standard permit. Although the time to comment and request a contested case hearing has been a 15-day period since 1985 when the opportunity to request a contested case hearing for a concrete batch plant was added to the TCAA, the commission has received comments on previously submitted CBP standard permit registration applications expressing concern that the 15-day period to comment and request a hearing is too short. In response, this rulemaking extends that period to 30 days. In addition, the commission determined that 30 days is reasonable because the permit conditions cannot change in response to comment.

The commission disagrees that the rule amendments place the interests of industry above protection of public health and the environment. The CBP standard permit, last amended in 2012, is protective of human health and the environment, as discussed elsewhere in this Response to Comments. The commission has made no changes to the rules in response to these comments

Comment

Representative Allen commented that the current 15-day NORI period is often not enough time to allow citizens to search the newspapers, review the permit and understand its implications, decide to request a public meeting or a contested case hearing, and then to submit the information to TCEQ in a timely fashion. However, the proposed single 30-day period for the permit is also inadequate. Although the proposed rule allows additional time to request a contested case hearing, it shortens the time with which the public is able to organize and provide public comment.

The City of Dallas commented that it is very concerned that the proposed rules will substantially and unjustifiably limit the public's right to receive notices, submit comments, request public meetings, and request public hearings during the permit application process for the CBP standard permit. The proposed consolidation of the NORI and NAPD into one notice is a significant decrease in time and would diminish public opportunity for input to the agency. This would substantially limit the public's existing right to engage in the permitting process.

TACA supports the executive director's proposed rulemaking, including the specific amendments to §39.411 and §39.603. This rulemaking will allow the public more time to review the registration application. Because the initial comment period will increase from a 15-day period to a 30-day period, this rulemaking will also ensure an additional 15 days to request a contested case hearing. TACA encourages the TCEQ to adopt the rules as proposed.

Response

The purpose of this rulemaking is to establish a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. In response to previously submitted CBP standard permit registration applications, the public has expressed concerns that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or a contested case hearing, and then to timely submit the information to the TCEQ.

The consolidated NORI and NAPD will not be prepared or mailed to the registrant for publication until the registration application is both administratively and technically complete. To ensure that it is clear that the public has the opportunity to review the complete registration application with the established CBP standard permit within the 30-day comment period, §39.603(c) was changed from proposal in response to these comments to delete the reference to the executive director declaring the registration application administratively complete. In addition, §55.152(a)(2) is adopted to provide for a 30-day notice period.

Companies submitting registration applications to construct under the CBP standard permit are required to publish notice in a newspaper, and, in some cases, in alternate language publications. In addition, they are also required to post signs at the proposed site of the concrete batch plant. Both the signs, which are often the most effective for notifying nearby residents, and the newspaper notices provide instructions on how to obtain additional information about the registration application. A copy of the registration application is also available in a local public place. The TCEQ or the registrant may be contacted for more information about the registration application or CBP standard permit conditions.

The commission understands that citizens who live or work near a proposed location of a concrete batch plant may have never before received notice of a proposed concrete batch plant, or may be unaware of the commission's CBP standard permit, the process for submitting comments, or the opportunity to request a public meeting, or, for certain persons, the opportunity to request a contested case hearing. People can stay informed of any notices in their area by signing up for a mailing list, or going online to http://www14.tceq.texas.gov/epic/eNotice/ and pull up notices by ZIP Code, County, etc.

To develop their comments and questions, citizens can review both the registration application and the commission's CBP standard permit. Unlike case-by-case applications which are often hundreds of pages in length and may contain air dispersion modeling, registration applications for a CBP standard permit are, by their nature, less extensive (on average they contain approximately 40 pages) and air dispersion modeling is not required. As discussed earlier, the conditions of the permit will be the same for all owners and operators that register to construct and operate under the CBP standard permit. Standard permits are not designed to be amended to include tailored permit conditions applicable to an individual registration. As such, the permit conditions cannot change in response to comments. The CBP standard permit was last amended by the commission effective December 21, 2012. In the actual permit document, currently located at https://www.tceq.texas.gov/assets/public/permitting/air/NewSourceReview/Mechanical/cbpsp-finalpreamble.pdf, the commission explains its basis for finding that the permit is protective of human health and the environment, and its basis for the specific permit conditions.

The deadline for submitting comments is extended to the end of any public meeting held regarding the registration application, if the meeting is held more than 30 days after the date of the last newspaper publication. Public meetings provide an opportunity for the public to submit comments regarding the registration applications. For CBP standard permit registration applications, the TCEQ will hold a public meeting if there is significant public interest in a registration application or if requested by a legislator from the area of the proposed project. A request for a public meeting must be submitted to the chief clerk during the 30-day public comment period. Comments, public meeting requests, and requests for contested case hearings may be submitted in writing to the commission via regular mail, fax, hand delivery, or electronic submittal. Oral comments are accepted at public meetings. All timely comments are responded to in writing by the executive director at or prior to the issuance of the CBP standard permit registration. Requests for contested case hearing must be received within 30 days of the publication of the consolidated notice. All timely hearing requests are considered by the commissioners in their open meeting.

Within the 30-day period, citizens should have adequate time to become aware of the notice, review the registration application and CBP standard permit, prepare and submit comments, and request a public meeting or a contested case hearing. For these reasons, and because the permit conditions cannot change in response to comment, the commission has determined that a 30-day comment period is reasonable.

Comment

Representative Allen commented that she and her constituents in House District 131 feel that rather than shortening the length of time the public is able to weigh in, they should be given, at minimum, the same amount of time they have presently, which is 45 days. Although they appreciate the extension of the contested case hearing deadline, and understand the need for consolidation and greater efficiency in the process, they do not see the need for the public to give up precious time in the process for providing feedback, when they have so little say to begin with. The residents are almost always on the losing side of these permits, having to put up with increased traffic, deteriorating roads, and dust particles. Having the time to weigh in on the application gives residents the ability to form a dialogue with the applicant, wherein they are able to discuss things like alternative routes, locations, and dust mitigation techniques. They support a 45-day notice that combines the entire application and review process, which would better serve the interests of both the communities and the owners or operators.

Response

As discussed earlier, because the registration application information is not voluminous, the commission has determined that 30 days is appropriate. The commission understands that citizens may want to meet with representatives of the applicant to discuss local concerns, including topics for which the TCEQ does not have jurisdiction, such as alternative routes for trucks and the specific location of the concrete batch plant. This can be accomplished by meetings between citizens and the applicant, or at a public meeting conducted by TCEQ. The commission has made no changes to the rules in response to this comment.

Comment

TACA commented that the proposed rule changes will expedite the permitting process, and encourages the TCEQ to adopt the rules as proposed.

Response

The purpose of this rulemaking is to establish a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. In response to previously submitted CBP standard permit registration applications, the public has expressed concerns that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or a contested case hearing, and then to timely submit the information to the TCEQ. Specifically, with one notice instead of two, TCEQ anticipates that there will be more clarity regarding the timeframe to submit hearing requests.

Under the amended rules, the administrative and technical reviews will occur prior to issuance of the consolidated NORI and NAPD for publication by the registrant. The TCEQ will consider the comments submitted and prepare a response to comments, which is also included as part of the processing time. If hearing requests are received, additional time is required for the commission to consider those requests at an open meeting. If a contested case hearing is held, the final decision on the registration application may be one year or longer after it is received.

The change to a consolidated notice may result in a reduction in the application processing time due to the notice consolidation. However, that reduction cannot be estimated at this time. Between September 1, 2015, and September 1, 2016, the average time to process CBP standard permit registration applications with both NORI and NAPD was 129 days. This includes registration applications with comments, public meetings and, where applicable, contested case hearing requests considered by the commission, including those for which a hearing request was granted and a contested case hearing was held.

Although there will be no separate NAPD publication under the adopted rules, the factor that primarily determines the length of time for a permit to be issued is the quality of the registration application. The permitting process is shortest when registrants provide a complete application at submittal, and newspaper publication occurs within a day or a few days after the notice is provided to the registrant by TCEQ. To expedite the review process, applicants can elect to submit their registration applications under the commission's expedited permitting program.

Comment

TACA commented that the change in public notice requirements would provide a cost savings to operators of concrete batch plants.

Response

As discussed in the Public Benefits and Costs portion of the proposed rule preamble, registrants for the CBP standard permit will save approximately 50% on publication costs by having one publication instead of two for English language publication and also for any required alternate language publication. One round of English language publication costs are estimated between $674 and $9,759, depending on which newspaper is used for publication, the day of the week, and how many words are in the notice. The cost of publishing in newspapers in larger cities is greater than newspaper publication costs in smaller cities.

Comment

TACA commented that the proposed rule changes will eliminate duplicative public notice requirements. TACA encourages the TCEQ to adopt the rules as proposed.

Response

Prior to these rule amendments, a registrant was required to publish two separate public notices, NORI and NAPD. Because the registration application is for a CBP standard permit, the only new information for the public to review during the NAPD period were updates to the application that may have been requested as part of the technical review. As discussed previously in this preamble, the permit conditions are established when the standard permit is issued by the commission under THSC, §382.05195 and 30 TAC Chapter 116, Subchapter F and cannot be changed or tailored for a specific facility. Under the adopted rules, the technical review will be complete prior to issuance of the consolidated notice.

These permits are distinguishable from applications for individual case-by-case permit applications. For those applications, the NORI does not include a draft permit for public review and comment. Only the NAPD for individual case-by-case permit applications provides a draft permit with conditions tailored to the specific type of facilities and emissions to be authorized that is subject to public review and comment. Those comments may result in changes to the draft permit.

These two separate procedures have resulted in some frustration that comments submitted in response to the NAPD for a CBP standard permit cannot result in changes to the permit.

Because the CBP standard permit process differs from the individual case-by-case permit application process, providing a separate NAPD for a CBP standard permit registration does not provide the public new information to form the basis for submitting comments that may affect the outcome of the TCEQ review. Because the CBP standard permit registration applications are less complex than many other applications, having the technical review completed and the standard permit available for review during one 30-day comment period is expected to result in comments that are more specifically focused on the particular registration application.

Concerns Regarding Protection of Public Health

Comment

The City of Houston commented that there is no doubt that concrete batch facility operations emit particulate air pollution. Particulate air pollution is known to be correlated with high-risk asthma attacks and cardiac arrest. There are currently 18 concrete batch facilities in a four-mile radius within the socio-economically disadvantaged Houston Super Neighborhoods of Central/Southeast, South Acres/Crestmont Park, and Minnetex. These Houston neighborhoods also experience particulate air pollution from other sources, including 13 metal recycling facilities. In summary, there are numerous facilities in socioeconomic or disadvantaged neighborhoods in Houston, which experience a higher rate of air pollution and health effects higher than the remainder of the city. Unsurprisingly, each of these particular Houston neighborhoods is within a "high risk of asthma attack and cardiac arrest" area according to the American Journal of Preventative Medicine and Public Health. See Loren H. Raun, Geospatial Analysis for Targeting Out-of-Hospital Cardiac Arrest Intervention, American Journal of Preventive Medicine, August 2013, at 137-42; Loren H. Raun, Factors Affecting Ambulance Utilization for Asthma Attack Treatment: Understanding Where to Target Interventions, Public Health, March 2015. Health officials are concerned that, in the aggregate, the density of air pollution sources, such as concrete batch plants, may result in cumulative concentration levels that pose an unacceptable health risk to neighborhoods like these.

The rules should not be changed to make it harder for communities and citizens to protect themselves by participating in regulatory proceedings, and therefore the City of Houston opposes the proposed rules.

The City of Dallas commented that the proposed rules do not further the TCEQ's stated mission of protecting the state's public health and natural resources consistent with sustainable economic development.

Response

The TCEQ previously conducted a comprehensive protectiveness review during the development of the CBP standard permit to ensure that the requirements of the permit would protect human health and the environment. This review took into consideration many variables and assumed conditions that maximize emissions impacts to develop an air dispersion modeling approach that was conservative and applicable to any location in the state.

The primary contaminants evaluated during the protectiveness review as potential emissions from concrete batch plants included particulate matter (PM) (aerodynamic diameter of equal to or less than 10 and 2.5 micrometers (PM10 and PM2.5)), carbon monoxide (CO), nitrogen dioxide (NO2), sulfur dioxide (SO2), nickel particulate, and formaldehyde. When the conditions of this CBP standard permit are met, including annual, daily, and hourly production limits, concentrations of these pollutants would be below their respective health protective values, including the National Ambient Air Quality Standards (NAAQS) or TCEQ Effects Screening Levels (ESLs).

The NAAQS values for CO, NO2, SO2, and PM are derived to protect human health with an adequate margin of safety to include sensitive populations such as children, the elderly, and individuals that suffer from respiratory diseases such as asthma and chronic obstructive pulmonary disease (COPD). Similar criteria are used to derive the ESLs. Thus, if short-term and long-term emissions do not exceed these values, the operation of facilities with these types of emissions would not pose a threat to human health or welfare. This particular area of Houston has been in compliance with the NAAQS for all of the aforementioned air contaminants and will be required to continue to meet the NAAQS in the future even if those standards change.

The concern regarding the 18 concrete batch plants is addressed in two ways: via the conservatism used to derive the health protective NAAQS and ESLs, which take into consideration cumulative and aggregate exposures; and by the thorough review of air dispersion modeling representations of these types of facilities that are conducted during the development of the CBP standard permit. Modeling data indicate that maximum concentrations of pollutant emissions would typically occur a relatively short distance from the emissions source. Therefore, review of other off-site sources is not necessary when determining approval of registration applications for this particular standard permit. Concrete batch plants located greater than 550 feet from sources with similar emissions are predicted to not exceed the health protective NAAQS or ESLs, even when operating simultaneously. The CBP standard permit requires the owner or operator to locate the concrete batch plant at least 550 feet from any crushing plant or hot mix asphalt plant. If these distance conditions in the standard permit are not met, then sources with similar emissions such as rock crushers, hot mix asphalt plants, or other concrete batch plants cannot operate at the same time.

As discussed earlier, there are layers of conservatism incorporated into the CBP standard permit. This includes the modeling assumptions used to establish the operational limitations, which include fabric or cartridge filter systems to control PM; distance restrictions regarding the location of the concrete batch plant relative to any crushing plant, hot mix asphalt plant, or other concrete batch plant; distance restrictions regarding the location of the suction shroud baghouse exhaust, stationary equipment, stockpiles, or vehicles used for the operation of the concrete batch plant; and material throughput by limiting the site production to, for example, no more than 300 cubic yards in any one hour and no more than 6,000 cubic yards per day. In addition, the NAAQS and ESLs are not only health-protective, but include a margin of safety to accommodate sensitive populations, aggregate exposures, and cumulative exposures. Thus, when the conditions of the CBP standard permit are met, plants operating under these permits are not expected to adversely affect human health, welfare, or the environment.

The comment also refers to areas of Houston where the neighborhoods coexisting with concrete batch plants and metal recycling facilities are characterized as "high risk of asthma and cardiac arrest," according to a scientific study published by Raun and colleagues. TCEQ staff reviewed this publication and has concerns with the interpretation and utilization of data therein. Primary concerns are that the study of correlation between emergency medical service (EMS) calls and criteria pollutants (CO, NO2, SO2, and PM2.5) were in fact inconsistent, indicating a weakness in these associations and suggesting that the pollutants did not cause the EMS calls. The study authors also utilized a highly conservative linear model to estimate risks. Available data suggest that this type of model would overestimate risk for many criteria pollutants and would be inappropriate to use based on the fact that many, if not all, criteria pollutants demonstrate a threshold, meaning that there is a concentration below which harmful effects are not observed. Due to lack of proper controls, inconsistency in the body of available scientific evidence in the study, and acknowledgement of the limitations of their model, the results of these studies may be considered of interest, but not reliably predictive of health effects, particularly at lower, ambient pollutant levels.

Therefore, TCEQ's extensive evaluation clearly indicates that concrete batch plants operating in this area of Houston do not pose a threat to human health or welfare due to the parameters and limitations applied to the CBP standard permit. This conclusion is supported by the TCEQ's monitoring data in the area that demonstrate compliance with the PM NAAQS, which accommodate both aggregate and cumulative exposure. The commission has made no changes to the rules in response to these comments.

SIP Revision

Comment

EPA commented that the proposed amendments to §39.411(e)(4)(A)(ii) should not be submitted to the EPA as a revision to the SIP because this part of the rule pertains to permitting of Hazardous Air Pollutants under the Federal Clean Air Act, §112(g), 40 Code of Federal Regulations Part 63, and regulation of Hazardous Air Pollutants is outside the scope of the SIP.

Response

The commission agrees and is not submitting §39.411(e)(4)(A)(ii) as a revision to the SIP.

SUBCHAPTER H. APPLICABILITY AND GENERAL PROVISIONS

30 TAC §39.411

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and TWC, §5.115, Persons Affected in Commission Hearings' Notice of Application, which requires the commission to determine affected persons and provide certain notice of applications. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission; and THSC, §382.058, concerning Notice of and Hearing on Construction of Concrete Plant Under Permit by Rule, Standard Permit, or Exemption, which prescribes authorization requirements for certain concrete batch plants. In addition, the amendment is also adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the National Ambient Air Quality Standards will be achieved and maintained within each air quality control region of the state.

The adopted amendment implements THSC, §382.056 and §382.058.

§39.411.Text of Public Notice.

(a) Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice being given.

(b) When Notice of Receipt of Application and Intent to Obtain Permit by publication or by mail is required by Subchapters H and K of this chapter (relating to Applicability and General Provisions and Public Notice of Air Quality Permit Applications) for air quality permit applications, those applications are subject to subsections (e) - (h) of this section. When notice of receipt of application and intent to obtain permit by publication or by mail is required by Subchapters H - J and L of this chapter (relating to Applicability and General Provisions, Public Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality Management Plans, and Public Notice of Injection Well and Other Specific Applications), Subchapter G of this chapter (relating to Public Notice for Applications for Consolidated Permits), or for Subchapter M of this chapter (relating to Public Notice for Radioactive Material Licenses), the text of the notice must include the following information:

(1) the name and address of the agency and the telephone number of an agency contact from whom interested persons may obtain further information;

(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the applicant for further information;

(3) a brief description of the location and nature of the proposed activity;

(4) a brief description of public comment procedures, including:

(A) a statement that the executive director will respond to comments raising issues that are relevant and material or otherwise significant; and

(B) a statement in the notice for any permit application for which there is an opportunity for a contested case hearing, that only disputed factual issues that are relevant and material to the commission's decision that are raised during the comment period can be considered if a contested case hearing is granted;

(5) a brief description of procedures by which the public may participate in the final permit decision and, if applicable, how to request a public meeting, contested case hearing, reconsideration of the executive director's decision, a notice and comment hearing, or a statement that later notice will describe procedures for public participation, printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice. The notice should include a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity;

(6) the application or permit number;

(7) if applicable, a statement that the application or requested action is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies;

(8) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the application is available for review and copying;

(9) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application;

(10) for notices of municipal solid waste applications, a statement that a person who may be affected by the facility or proposed facility is entitled to request a contested case hearing from the commission. This statement must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice; and

(11) any additional information required by the executive director or needed to satisfy public notice requirements of any federally authorized program; or

(12) for radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules), if applicable, a statement that a written environmental analysis on the application has been prepared by the executive director, is available to the public for review, and that written comments may be submitted; and

(13) for Class 3 modifications of hazardous industrial solid waste permits, the statement "The permittee's compliance history during the life of the permit being modified is available from the agency contact person."

(c) Unless mailed notice is otherwise provided for under this section, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters G - J and L of this chapter, the text of the notice must include the following information:

(1) the information required by subsection (b)(1) - (11) of this section;

(2) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's preliminary decision may be submitted, or a statement in the notice for any permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted. The public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;

(3) if the application is subject to final approval by the executive director under Chapter 50 of this title (relating to Action on Applications and Other Authorizations), a statement that the executive director may issue final approval of the application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is filed with the chief clerk after transmittal of the executive director's decision and response to public comment;

(4) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;

(5) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the complete application and the executive director's preliminary decision are available for review and copying;

(6) the deadline to file comments or request a public meeting. The notice should include a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity; and

(7) for radioactive material licenses under Chapter 336 of this title, if applicable, a statement that a written environmental analysis on the application has been prepared by the executive director, is available to the public for review, and that written comments may be submitted.

(d) When notice of a public meeting or notice of a hearing by publication or by mail is required by Subchapters G - J and L of this chapter, the text of the notice must include the following information:

(1) the information required by subsection (b)(1) - (3), (6) - (8), and (11) of this section;

(2) the date, time, and place of the meeting or hearing, and a brief description of the nature and purpose of the meeting or hearing, including the applicable rules and procedures; and

(3) for notices of public meetings only, a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's preliminary decision may be submitted and a statement in the notice for any permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted.

(e) When Notice of Receipt of Application and Intent to Obtain Permit by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the information in this subsection:

(1) the name and address of the agency and the telephone number of an agency contact from whom interested persons may obtain further information;

(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the applicant for further information;

(3) a brief description of the location and nature of the proposed activity;

(4) a brief description of public comment procedures, including:

(A) a statement that the executive director will respond to:

(i) all comments regarding applications for Prevention of Significant Deterioration and Nonattainment permits under Chapter 116, Subchapter B of this title (relating to New Source Review Permits) and Plant-wide Applicability Limit permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) filed on or after June 18, 2010;

(ii) all comments regarding applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction, filed on or after June 18, 2010; and

(iii) for all other air quality permit applications, comments raising issues that are relevant and material or otherwise significant; and

(B) a statement in the notice for any air quality permit application for which there is an opportunity for a contested case hearing, that only disputed factual issues that are relevant and material to the commission's decision that are raised during the comment period can be considered if a contested case hearing is granted;

(5) a brief description of procedures by which the public may participate in the final permit decision and, if applicable, how to request a public meeting, contested case hearing, reconsideration of the executive director's decision, a notice and comment hearing, or a statement that later notice will describe procedures for public participation, printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice. Where applicable, the notice should include a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located if there is substantial public interest in the proposed activity when requested by any interested person for the following applications that are filed on or after June 18, 2010:

(A) air quality permit applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment in Chapter 116, Subchapter B of this title;

(B) applications for the establishment or renewal of, or an increase in, a plant-wide applicability limit subject to Chapter 116 of this title; and

(C) applications subject to the requirements of Chapter 116, Subchapter E of this title, whether for construction or reconstruction;

(6) the application or permit number;

(7) if applicable, a statement that the application or requested action is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies;

(8) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the application is available for review and copying;

(9) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application;

(10) at a minimum, a listing of criteria pollutants for which authorization is sought in the application which are regulated under national ambient air quality standards or under state standards in Chapters 111, 112, 113, 115, and 117 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter, Control of Air Pollution from Sulfur Compounds, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants, Control of Air Pollution from Volatile Organic Compounds, and Control of Air Pollution from Nitrogen Compounds);

(11) If notice is for any air quality permit application except those listed in paragraphs (12) and (15) of this subsection, the following information must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice:

(A) a statement that a person who may be affected by emissions of air contaminants from the facility or proposed facility is entitled to request a contested case hearing from the commission within the following specified time periods;

(i) for air quality permit applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title a statement that a request for a contested case hearing must be received by the commission by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;

(ii) for air quality permit applications subject to the requirements of Chapter 116, Subchapter E of this title, whether for construction or reconstruction, a statement that a request for a contested case hearing must be received by the commission by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;

(iii) for renewals of air quality permits that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted and the application does not involve a facility for which the applicant's compliance history is in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History), a statement that a request for a contested case hearing must be received by the commission before the close of the 15-day comment period provided in response to the last publication of Notice of Receipt of Application and Intent to Obtain Permit;

(iv) for initial registrations for concrete batch plants under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) received on or after January 1, 2017, the following statements:

(I) a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(c) of this title (relating to Newspaper Notice);

(II) if no hearing requests are received by the end of the 30-day comment period there is no further opportunity to request a contested case hearing; and

(III) if any hearing requests are received before the close of the 30-day comment period, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments; or

(v) for all air quality permit applications other than those in clauses (i(iv) of this subparagraph, a statement that a request for a contested case hearing must be received by the commission before the close of the 30-day comment period provided in response to the last publication of Notice of Receipt of Application and Intent to Obtain Permit. If no hearing requests are received by the end of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, there is no further opportunity to request a contested case hearing. If any hearing requests are received before the close of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;

(B) a statement that a request for a contested case hearing must be received by the commission;

(C) a statement that a contested case hearing request must include the requester's location relative to the proposed facility or activity;

(D) a statement that a contested case hearing request should include a description of how the requestor will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requestor's uses of property which may be impacted by the proposed facility or activity;

(E) a statement that only relevant and material issues raised during the comment period can be considered if a contested case hearing request is granted; and

(F) if notice is for air quality permit applications described in subparagraph (A)(v) of this paragraph, a statement that when no hearing requests are timely received the applicant shall publish a Notice of Application and Preliminary Decision that provides an opportunity for public comment and to request a public meeting.

(12) if notice is for air quality applications for a permit under Chapter 116, Subchapter L of this title (relating to Permits for Specific Designated Facilities), filed on or before January 1, 2018, a Multiple Plant Permit under Chapter 116, Subchapter J of this title (relating to Multiple Plant Permits), or for a Plant-wide Applicability Limit under Chapter 116 of this title, a statement that any person is entitled to request a public meeting or a notice and comment hearing, as applicable from the commission;

(13) notification that a person residing within 440 yards of a concrete batch plant authorized by the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title is an affected person who is entitled to request a contested case hearing;

(14) the statement: "The facility's compliance file, if any exists, is available for public review in the regional office of the Texas Commission on Environmental Quality;"

(15) if notice is for an application for an air quality permit under Chapter 116, Subchapter B, Division 6 of this title (relating to Prevention of Significant Deterioration Review) that would authorize only emissions of greenhouse gases as defined in §101.1 of this title (relating to Definitions), a statement that any interested person is entitled to request a public meeting or a notice and comment hearing, as applicable, from the commission; and

(16) any additional information required by the executive director or needed to satisfy federal public notice requirements.

(f) The chief clerk shall mail Notice of Application and Preliminary Decision, or the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision, as provided for in §39.603(c) of this title, to those listed in §39.602 of this title (relating to Mailed Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the information in this subsection:

(1) the information required by subsection (e) of this section;

(2) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;

(3) the location, at a public place in the county with internet access in which the facility is located or proposed to be located, at which a copy of the complete application and the executive director's draft permit and preliminary decision are available for review and copying;

(4) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's draft permit and, where applicable, preliminary decision, preliminary determination summary, and air quality analysis may be submitted, or a statement in the notice for any air quality permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted. The public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;

(5) the deadline to file comments or request a public meeting. The notice should include a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity. The notice must include a statement that the comment period will be for at least thirty days following publication of the Notice of Application and Preliminary Decision;

(6) if the application is subject to final approval by the executive director under Chapter 50 of this title, a statement that the executive director may issue final approval of the application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is filed with the chief clerk after transmittal of the executive director's decision and response to public comment;

(7) If the executive director prepares a Response to Comments as required by §55.156 of this title (relating to Public Comment Processing), the chief clerk will make the executive director's response to public comments available on the commission's website;

(8) in addition to the requirements in paragraphs (1) - (7) of this subsection, for air quality permit applications filed on or after June 18, 2010 for permits under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review):

(A) as applicable, the degree of increment consumption that is expected from the source or modification;

(B) a statement that the state's air quality analysis is available for comment;

(C) the deadline to request a public meeting;

(D) a statement that the executive director will hold a public meeting at the request of any interested person; and

(E) a statement that the executive director's draft permit and preliminary decision, preliminary determination summary, and air quality analysis are available electronically on the commission's website at the time of publication of the Notice of Application and Preliminary Decision; and

(9) in addition to the requirements in paragraphs (1) - (7) of this subsection, for air quality permit applications filed on or after June 18, 2010 for permits under Chapter 116, Subchapter E of this title:

(A) the deadline to request a public meeting;

(B) a statement that the executive director will hold a public meeting at the request of any interested person; and

(C) a statement that the executive director's draft permit and preliminary decision are available electronically on the commission's website at the time of publication of the Notice of Application and Preliminary Decision.

(g) When notice of a public meeting by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications filed on or after June 18, 2010, the text of the notice must include the information in this subsection. Air quality permit applications filed before June 18, 2010 are governed by the rules in Subchapters H and K of this chapter as they existed immediately before June 18, 2010, and those rules are continued in effect for that purpose.

(1) the information required by subsection (e)(1) - (3), (4)(A), (6), (8), (9), and (16) of this section;

(2) the date, time, and place of the public meeting, and a brief description of the nature and purpose of the meeting, including the applicable rules and procedures; and

(3) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's draft permit and preliminary decision, and, as applicable, preliminary determination summary, and air quality analysis may be submitted and a statement in the notice for any air quality permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted.

(h) When notice of a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings) by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the following information:

(1) the information required by subsection (e)(1) - (3), (6), (9) and (16) of this section; and

(2) the date, time, and place of the hearing, and a brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606421

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-6812


SUBCHAPTER K. PUBLIC NOTICE OF AIR QUALITY PERMIT APPLICATIONS

30 TAC §39.603

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and TWC, §5.115, Persons Affected in Commission Hearings' Notice of Application, which requires the commission to determine affected persons and provide certain notice of applications. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the TCEQ; and THSC, §382.058, concerning Notice of and Hearing on Construction of Concrete Plant Under Permit by Rule, Standard Permit, or Exemption, which prescribes authorization requirements for certain concrete batch plants. In addition, the amendment is also adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the National Ambient Air Quality Standards will be achieved and maintained within each air quality control region of the state.

The adopted amendment implements THSC, §382.056 and §382.058.

§39.603.Newspaper Notice.

(a) Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit) is required to be published no later than 30 days after the executive director declares an application administratively complete. This notice must contain the text as required by §39.411(e) of this title (relating to Text of Public Notice). This notice is not required for Plant-wide Applicability Limit permit applications.

(b) Notice of Application and Preliminary Decision under §39.419 of this title (relating to Notice of Application and Preliminary Decision) is required to be published within 33 days after the chief clerk has mailed the preliminary decision concurrently with the Notice of Application and Preliminary Decision to the applicant. This notice must contain the text as required by §39.411(f) of this title.

(c) Owners and operators who submit initial registration applications on or after January 1, 2017, for authorization to construct and operate a concrete batch plant under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) shall publish a consolidated Notice of Receipt of Application and Intent to Obtain Permit (NORI) under §39.418 of this title and Notice of Application and Preliminary Decision (NAPD) under §39.419 of this title no later than 30 days after the chief clerk has mailed the preliminary decision concurrently with the consolidated NORI and NAPD to the registrant. This notice must contain the text as required by §39.411(f) of this title.

(d) General newspaper notice. Unless otherwise specified, when this chapter requires published notice of an air quality permit application or registration, the applicant or registrant shall publish notice in a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located or in the municipality nearest to the location or proposed location of the facility, as follows.

(1) One notice must be published in the public notice section of the newspaper and must comply with §39.411(e) - (g) of this title.

(2) Another notice with a total size of at least six column inches, with a vertical dimension of at least three inches and a horizontal dimension of at least two column widths, or a size of at least 12 square inches, must be published in a prominent location elsewhere in the same issue of the newspaper. This notice must contain the following information:

(A) permit application or registration number;

(B) company name;

(C) type of facility;

(D) description of the location of the facility; and

(E) a note that additional information is in the public notice section of the same issue.

(e) Alternative publication procedures for small businesses.

(1) The applicant or registrant does not have to comply with subsection (d)(2) of this section if all of the following conditions are met:

(A) the applicant or registrant and source meets the definition of a small business stationary source in Texas Water Code, §5.135 including, but not limited to, those which:

(i) are not a major stationary source for federal air quality permitting;

(ii) do not emit 50 tons or more per year of any regulated air pollutant;

(iii) emit less than 75 tons per year of all regulated air pollutants combined; and

(iv) are owned or operated by a person that employs 100 or fewer individuals; and

(B) if the applicant's or registrant's site meets the emission limits in §106.4(a) of this title (relating to Requirements for Permitting by Rule) it will be considered to not have a significant effect on air quality.

(2) The executive director may post information regarding pending air permit applications on its website, such as the permit number, company name, project type, facility type, nearest city, county, date public notice authorized, information on comment periods, and information on how to contact the agency for further information.

(f) If an air application or registration is referred to State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings), the applicant or registrant shall publish notice once in a newspaper as described in subsection (d) of this section, containing the information under §39.411(h) of this title. This notice must be published and affidavits filed with the chief clerk no later than 30 days before the scheduled date of the hearing.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606422

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-6812


CHAPTER 55. REQUESTS FOR RECONSIDERATION AND CONTESTED CASE HEARINGS; PUBLIC COMMENT

SUBCHAPTER E. PUBLIC COMMENT AND PUBLIC MEETINGS

30 TAC §55.152

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts an amendment to §55.152.

The amendment to §55.152 is adopted with change to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5339) and, therefore, will be republished.

The amendments to §55.152(a)(2), (3), (6) and (7) will be submitted to the United States Environmental Protection Agency as revisions to the State Implementation Plan.

Background and Summary of the Factual Basis for the Adopted Rule

On February 25, 2016, Texas Aggregates and Concrete Association (TACA) submitted a petition requesting the commission conduct rulemaking to amend public notice rules applicable to initial registration applications for authorization under the Air Quality Standard Permit for Concrete Batch Plants, referred to in this preamble for ease of reference as the CBP standard permit. This permit is distinguishable from the Air Quality Standard Permit for Concrete Batch Plants with Enhanced Controls, which has different notice and public participation requirements. The petition requested amendments to 30 TAC §39.411(e)(11)(A)(iii) and §39.603(a) and (b) to provide for one 30-day public notice of initial registration applications. On April 6, 2016, the commission considered the petition and directed the executive director to examine the request and initiate rulemaking.

The TACA petition did not address the Air Quality Standard Permit for Concrete Batch Plants with Enhanced Controls authorized under Texas Clean Air Act (TCAA), Texas Health and Safety Code (THSC), §382.05198. The public notice requirements for that standard permit are listed within the permit, and registrations for that permit are not subject to the rules in Chapter 39. Therefore, public notice requirements for that permit are not affected by this adopted rulemaking.

The commission is authorized to adopt standard permits under THSC, §382.05195, which prescribes the procedures the commission must follow to adopt a standard permit. The commission implemented THSC, §382.05195 by adopting rules in 30 TAC Chapter 116, Subchapter F. The rules in Chapter 116, Subchapter F provide that when the executive director drafts a new (or proposes amendments to an existing) standard permit, notice of the proposed permit is published in the Texas Register and in newspapers. In addition, TCEQ holds a public meeting to provide stakeholders the opportunity for discussion with TCEQ staff and for submittal of comments regarding the proposed permit. The responses to comments and any changes made to the proposed permit in response to the comments are presented to the commission for consideration in an open meeting, commonly referred to as Agenda. Once adopted, the conditions of the permit will be the same for all owners and operators that register to construct and operate under the standard permit. The standard permits are not designed to be amended to include tailored permit conditions applicable to an individual registration. The CBP standard permit was last amended by the commission effective December 21, 2012.

Each individual CBP Standard Permit registration application is subject to the public participation requirements in Chapters 39 and 55. Since 1985, owners or operators registering for authorization to construct and operate a concrete batch plant (under what is known today as the Air Quality Standard Permit for Concrete Batch Plants) have been subject to specific notice requirements for the proposed plant. These public notice requirements for initial registration applications included the opportunity to request a contested case hearing. In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which made changes to notice requirements for initial registration applications that were administratively complete on or after September 1, 1999. Since the rulemaking to implement HB 801 in 1999, and rule amendments adopted in 2010 have been in effect, the commission has required registrants for the CBP standard permit to publish a Notice of Receipt of Application and Intent to Obtain Permit (NORI) which solicits comments for a 15-day period; contested case hearing and public meeting requests are also solicited. At the same time the NORI is published in a newspaper of general circulation in the municipality or in the nearest municipality in which the plant will be located, the registrant is required to place a copy of the registration application in a public place in the county, and to post signs at the proposed facility location. Alternative language publication and signs may also be required.

After TCEQ staff complete the technical review, registrants were required to publish Notice of Application and Preliminary Decision (NAPD), which solicits comments for a 30-day period; hearing requests were also solicited but only if at least one such request was timely made in response to the NORI. At the close of the comment period, the executive director prepares a written response to all timely-filed comments and files the response with the TCEQ's Office of Chief Clerk. If hearing requests were submitted in response to the NORI, hearing requests may be submitted during the 30-day period after the mailing of the executive director's response to comments. Based on comments, registrants may update their registration application representations as to how they will construct and operate under the standard permit; historically, this has been very uncommon. Also, because the permit conditions in the CBP standard permit are established by the commission when the standard permit is adopted, the executive director cannot change any permit conditions for an individual registration in response to comments.

The public has expressed concern that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or contested case hearing, and then to timely submit the information to the TCEQ. This rulemaking requires one 30-day consolidated notice for registrants of the CBP standard permit that will serve as both the NORI and NAPD. To ensure the public has the opportunity to review a complete registration application, the consolidated notice will be published after the administrative and technical reviews of the registration application are completed. The consolidated notice establishes a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. With one notice instead of two, TCEQ expects there will be more clarity regarding the restrictions on the timeframe to submit hearing requests.

Amended §55.152(a)(2) provides for a 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted in response to the consolidated NORI and NAPD. The notice period ends 30 days after the last date of newspaper publication, and the public comment period is automatically extended to the close of any public meeting, as required by §55.152(b). As provided for in §55.201(c), which implements Senate Bill 709 (84th Texas Legislature, 2015), hearing requests must be based on the requestor's timely submitted comments.

Concurrently with this adoption, and published in this issue of the Texas Register, the commission is adopting amendments to §39.411 and §39.603 in Chapter 39, Public Notice, to provide for a consolidated NORI and NAPD.

The public participation requirements for renewals of registrations under the CBP standard permit are not affected by the adopted amendments in Chapters 39 and 55.

Section Discussion

§55.152, Public Comment Period

Adopted §55.152(a)(2) is created by relocating some of the text of existing subsection (a)(2) to adopted subsection (a)(3). Adopted subsection (a)(2) provides that the close of the public comment period for standard permit registrations for concrete batch plants under the CBP Standard Permit would change from 15 days after the last publication of NORI, or 30 days after NAPD if a second notice is required, to 30 days after the last publication of the consolidated notice concurrently adopted in §39.603. Adopted §55.152(a)(2) does not apply to concrete batch plants temporarily located in or contiguous to the right-of-way of a public works project or to temporary concrete batch plants operating under the standard permit that qualify for relocation. Subsection (a)(2) was changed from proposal to reflect the actual name of the CBP standard permit, which is "Air Quality Standard Permit for Concrete Batch Plants."

Amended subsection (a)(3) will continue to provide for the comment period applicable to air quality permit renewal applications. Existing paragraphs (3)- (6) in §55.152(a) are re-numbered as paragraphs (4)- (7).

Final Regulatory Impact Analysis Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to Chapter 55 is not specifically intended to protect the environment or reduce risks to human health from environmental exposure to air pollutants, but instead would amend the public comment period for initial standard permit registrations for concrete batch plants under the CBP standard permit, which are procedural in nature.

As defined in the Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: exceed a standard set by federal law, unless the rule is specifically required by state law; exceed an express requirement of state law, unless the rule is specifically required by federal law; exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking action does not meet any of these four applicability requirements of a "major environmental rule." Specifically, the adopted amendment to Chapter 55 would amend the public comment period for initial standard permit registration applications for the CBP standard permit for Concrete Batch Plants, which is procedural in nature. This adopted rulemaking action does not exceed an express requirement of state law or a requirement of a delegation agreement, and was not developed solely under the general powers of the agency, but was developed to meet the requirements for public participation in the TCAA as identified in the Statutory Authority section of this preamble.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the Draft Regulatory Impact Analysis Determination.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007, is applicable. The adopted rulemaking to Chapter 55 amends the public comment period for initial standard permit registrations for concrete batch plants under the CBP standard permit, which is procedural in nature. Promulgation and enforcement of the adopted rulemaking will not burden private real property. The adopted amendment does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rule and found that it is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will the amendment affect any action or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted amendment is not subject to the Texas Coastal Management Program (CMP).

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the consistency with the CMP.

Effect on Sites Subject to the Federal Operating Permits Program

The adopted rule will not require any changes to outstanding federal operating permits.

Public Comment

The commission held a public hearing on August 10, 2016. The comment period closed on August 22, 2016. The commission received comments from Texas State Representative Alma Allen (Representative Allen), the City of Dallas, the City of Houston, and TACA.

Response to Comments

Changes in the Number of Notices and the Amount of Time to Submit Comments and Requests for a Contested Case Hearing

Comment

Representative Allen commented that while she does not believe that TCEQ's intent in helping the operators reach their goal for one notice is to shorten the time within which the community is able to organize and provide feedback, the shorter time is the most egregious consequence of this proposal.

The City of Houston commented that the current rules grant community members and citizens a valuable window of opportunity to evaluate the potential consequences of the plant proposed in their communities. They are able to obtain, review, and present information about the negative effects concrete batch plants have on communities. Shortening the notice period will burden citizens by limiting their opportunity to participate in important registration and permitting decisions. For those in socioeconomically disadvantaged communities who historically have had less of a voice in public processes and who have fewer resources to deploy to protect themselves, the burden will be particularly onerous.

The City of Dallas commented that the proposed rules place the interests of industry above protection of public health and the environment. There is no benefit to the public by limiting their right to participate in the process of TCEQ review of air permit applications for concrete batch plants.

Response

This rulemaking was not intended to adversely affect anyone's opportunity or ability to comment on a concrete batch plant registration application, or their ability to ask questions of a registrant who is seeking approval to construct and operate under the CBP standard permit. Although the time to comment and request a contested case hearing has been a 15-day period since 1985 when the opportunity to request a contested case hearing for a concrete batch plant was added to the TCAA, the commission has received comments on previously submitted CBP standard permit registration applications expressing concern that the 15-day period to comment and request a hearing is too short. In response, this rulemaking extends that period to 30 days. In addition, the commission determined that 30 days is reasonable because the permit conditions cannot change in response to comment.

The commission disagrees that the rule amendments place the interests of industry above protection of public health and the environment. The CBP standard permit, last amended in 2012, is protective of human health and the environment, as discussed elsewhere in this Response to Comments. The commission has made no changes to the rules in response to these comments.

Comment

Representative Allen commented that the current 15-day NORI period is often not enough time to allow citizens to search the newspapers, review the permit and understand its implications, decide to request a public meeting or a contested case hearing, and then to submit the information to TCEQ in a timely fashion. However, the proposed single 30-day period for the permit is also inadequate. Although the proposed rule allows additional time to request a contested case hearing, it shortens the time with which the public is able to organize and provide public comment.

The City of Dallas commented that it is very concerned that the proposed rules will substantially and unjustifiably limit the public's right to receive notices, submit comments, request public meetings, and request public hearings during the permit application process for the CBP standard permit. The proposed consolidation of the NORI and NAPD into one notice is a significant decrease in time and would diminish public opportunity for input to the agency. This would substantially limit the public's existing right to engage in the permitting process.

TACA supports the executive director's proposed rulemaking, including the specific amendments to §39.411 and §39.603. This rulemaking will allow the public more time to review the registration application. Because the initial comment period will increase from a 15-day period to a 30-day period, this rulemaking will also ensure an additional 15 days to request a contested case hearing. TACA encourages the TCEQ to adopt the rules as proposed.

Response

The purpose of this rulemaking is to establish a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. In response to previously submitted CBP standard permit registration applications, the public has expressed concerns that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or a contested case hearing, and then to timely submit the information to the TCEQ.

The consolidated NORI and NAPD will not be prepared or mailed to the registrant for publication until the registration application is both administratively and technically complete. To ensure that it is clear that the public has the opportunity to review the complete registration application with the established CBP standard permit within the 30-day comment period, §39.603(c) was changed from proposal in response to these comments to delete the reference to the executive director declaring the registration application administratively complete. In addition, §55.152(a)(2) is adopted to provide for a 30-day notice period.

Companies submitting registration applications to construct under the CBP standard permit are required to publish notice in a newspaper, and, in some cases, in alternate language publications. In addition, they are also required to post signs at the proposed site of the concrete batch plant. Both the signs, which are often the most effective for notifying nearby residents, and the newspaper notices provide instructions on how to obtain additional information about the registration application. A copy of the registration application is also available in a local public place. The TCEQ or the registrant may be contacted for more information about the registration application or CBP standard permit conditions.

The commission understands that citizens who live or work near a proposed location of a concrete batch plant may have never before received notice of a proposed concrete batch plant, or may be unaware of the commission's CBP standard permit, the process for submitting comments, or the opportunity to request a public meeting, or, for certain persons, the opportunity to request a contested case hearing. People can stay informed of any notices in their area by signing up for a mailing list, or going online to http://www14.tceq.texas.gov/epic/eNotice/ and pull up notices by ZIP Code, County, etc.

To develop their comments and questions, citizens can review both the registration application and the commission's CBP standard permit. Unlike case-by-case applications which are often hundreds of pages in length and may contain air dispersion modeling, registration applications for a CBP standard permit are, by their nature, less extensive (on average they contain approximately 40 pages) and air dispersion modeling is not required. As discussed earlier, the conditions of the permit will be the same for all owners and operators that register to construct and operate under the CBP standard permit. Standard permits are not designed to be amended to include tailored permit conditions applicable to an individual registration. As such, the permit conditions cannot change in response to comments. The CBP standard permit was last amended by the commission effective December 21, 2012. In the actual permit document, currently located at https://www.tceq.texas.gov/assets/public/permitting/air/NewSourceReview/Mechanical/cbpsp-finalpreamble.pdf, the commission explains its basis for finding that the permit is protective of human health and the environment, and its basis for the specific permit conditions.

The deadline for submitting comments is extended to the end of any public meeting held regarding the registration application, if the meeting is held more than 30 days after the date of the last newspaper publication. Public meetings provide an opportunity for the public to submit comments regarding the registration applications. For CBP standard permit registration applications, the TCEQ will hold a public meeting if there is significant public interest in a registration application or if requested by a legislator from the area of the proposed project. A request for a public meeting must be submitted to the chief clerk during the 30-day public comment period. Comments, public meeting requests, and requests for contested case hearings may be submitted in writing to the commission via regular mail, fax, hand delivery, or electronic submittal. Oral comments are accepted at public meetings. All timely comments are responded to in writing by the executive director at or prior to the issuance of the CBP standard permit registration. Requests for contested case hearing must be received within 30 days of the publication of the consolidated notice. All timely hearing requests are considered by the commissioners in their open meeting.

Within the 30-day period, citizens should have adequate time to become aware of the notice, review the registration application and CBP standard permit, prepare and submit comments, and request a public meeting or a contested case hearing. For these reasons, and because the permit conditions cannot change in response to comment, the commission has determined that a 30-day comment period is reasonable.

Comment

Representative Allen commented that she and her constituents in House District 131 feel that rather than shortening the length of time the public is able to weigh in, they should be given, at minimum, the same amount of time they have presently, which is 45 days. Although they appreciate the extension of the contested case hearing deadline, and understand the need for consolidation and greater efficiency in the process, they do not see the need for the public to give up precious time in the process for providing feedback, when they have so little say to begin with. The residents are almost always on the losing side of these permits, having to put up with increased traffic, deteriorating roads, and dust particles. Having the time to weigh in on the application gives residents the ability to form a dialogue with the applicant, wherein they are able to discuss things like alternative routes, locations, and dust mitigation techniques. They support a 45-day notice that combines the entire application and review process, which would better serve the interests of both the communities and the owners or operators.

Response

As discussed earlier, because the registration application information is not voluminous, the commission has determined that 30 days is appropriate. The commission understands that citizens may want to meet with representatives of the applicant to discuss local concerns, including topics for which the TCEQ does not have jurisdiction, such as alternative routes for trucks and the specific location of the concrete batch plants. This can be accomplished by meetings between citizens and the applicant, or at a public meeting conducted by TCEQ. The commission has made no changes to the rules in response to this comment.

Comment

TACA commented that the proposed rule changes will expedite the permitting process, and encourages the TCEQ to adopt the rules as proposed.

Response

The purpose of this rulemaking is to establish a single, 30-day notice period during which comments and requests for public meeting or contested case hearing can be submitted. In response to previously submitted CBP standard permit registration applications, the public has expressed concerns that the 15-day period is often not enough time to review the registration application, determine whether to comment, request a public meeting or a contested case hearing, and then to timely submit the information to the TCEQ. Specifically, with one notice instead of two, TCEQ anticipates that there will be more clarity regarding the timeframe to submit hearing requests.

Under the amended rules, the administrative and technical reviews will occur prior to issuance of the consolidated NORI and NAPD for publication by the registrant. The TCEQ will consider the comments submitted and prepare a response to comments, which is also included as part of the processing time. If hearing requests are received, additional time is required for the commission to consider those requests at an open meeting. If a contested case hearing is held, the final decision on the registration application may be one year or longer after it is received.

The change to a consolidated notice may result in a reduction in the application processing time due to the notice consolidation. However, that reduction cannot be estimated at this time. Between September 1, 2015, and September 1, 2016, the average time to process CBP standard permit registration applications with both NORI and NAPD was 129 days. This includes registration applications with comments, public meetings and, where applicable, contested case hearing requests considered by the commission, including those for which a hearing request was granted and a contested case hearing was held.

Although there will be no separate NAPD publication under the adopted rules, the factor that primarily determines the length of time for a permit to be issued is the quality of the registration application. The permitting process is shortest when registrants provide a complete application at submittal, and newspaper publication occurs within a day or a few days after the notice is provided to the registrant by TCEQ. To expedite the review process, applicants can elect to submit their registration applications under the commission's expedited permitting program.

Comment

TACA commented that the change in public notice requirements would provide a cost savings to operators of concrete batch plants.

Response

As discussed in the Public Benefits and Costs portion of the proposed rule preamble, registrants for the CBP standard permit will save approximately 50% on publication costs by having one publication instead of two for English language publication and also for any required alternate language publication. One round of English language publication costs are estimated between $674 and $9,759, depending on which newspaper is used for publication, the day of the week, and how many words are in the notice. The cost of publishing in newspapers in larger cities is greater than newspaper publication costs in smaller cities.

Comment

TACA commented that the proposed rule changes will eliminate duplicative public notice requirements. TACA encourages the TCEQ to adopt the rules as proposed.

Response

Prior to these rule amendments, a registrant was required to publish two separate public notices, NORI and NAPD. Because the registration application is for a CBP standard permit, the only new information for the public to review during the NAPD period were updates to the application that may have been requested as part of the technical review. As discussed previously in this preamble, the permit conditions are established when the standard permit is issued by the commission under THSC, §382.05195 and 30 TAC Chapter 116, Subchapter F and cannot be changed or tailored for a specific facility. Under the adopted rules, the technical review will be complete prior to issuance of the consolidated notice.

These permits are distinguishable from applications for individual case-by-case permit applications. For those applications, the NORI does not include a draft permit for public review and comment. Only the NAPD for individual case-by-case permit applications provides a draft permit with conditions tailored to the specific type of facilities and emissions to be authorized that is subject to public review and comment. Those comments may result in changes to the draft permit.

These two separate procedures have resulted in some frustration that comments submitted in response to the NAPD for a CBP standard permit cannot result in changes to the permit.

Because the CBP standard permit process differs from the individual case-by-case permit application process, providing a separate NAPD for a CBP standard permit registration does not provide the public new information to form the basis for submitting comments that may affect the outcome of the TCEQ review. Because the CBP standard permit registration applications are less complex than many other applications, having the technical review completed and the standard permit available for review during one 30-day comment period is expected to result in comments that are more specifically focused on the particular registration application.

Concerns Regarding Protection of Public Health

Comment

The City of Houston commented that there is no doubt that concrete batch facility operations emit particulate air pollution. Particulate air pollution is known to be correlated with high-risk asthma attacks and cardiac arrest. There are currently 18 concrete batch facilities in a four-mile radius within the socio-economically disadvantaged Houston Super Neighborhoods of Central/Southeast, South Acres/Crestmont Park, and Minnetex. These Houston neighborhoods also experience particulate air pollution from other sources, including 13 metal recycling facilities. In summary, there are numerous facilities in socioeconomic or disadvantaged neighborhoods in Houston, which experience a higher rate of air pollution and health effects higher than the remainder of the city. Unsurprisingly, each of these particular Houston neighborhoods is within a "high risk of asthma attack and cardiac arrest" area according to the American Journal of Preventative Medicine and Public Health. See Loren H. Raun, Geospatial Analysis for Targeting Out-of-Hospital Cardiac Arrest Intervention, American Journal of Preventive Medicine, August 2013, at 137-42; Loren H. Raun, Factors Affecting Ambulance Utilization for Asthma Attack Treatment: Understanding Where to Target Interventions, Public Health, March 2015. Health officials are concerned that, in the aggregate, the density of air pollution sources, such as concrete batch plants, may result in cumulative concentration levels that pose an unacceptable health risk to neighborhoods like these.

The rules should not be changed to make it harder for communities and citizens to protect themselves by participating in regulatory proceedings, and therefore the City of Houston opposes the proposed rules.

The City of Dallas commented that the proposed rules do not further the TCEQ's stated mission of protecting the state's public health and natural resources consistent with sustainable economic development.

Response

The TCEQ previously conducted a comprehensive protectiveness review during the development of the CBP standard permit to ensure that the requirements of the permit would protect human health and the environment. This review took into consideration many variables and assumed conditions that maximize emissions impacts to develop an air dispersion modeling approach that was conservative and applicable to any location in the state.

The primary contaminants evaluated during the protectiveness review as potential emissions from concrete batch plants included particulate matter (PM) (aerodynamic diameter of equal to or less than 10 and 2.5 micrometers (PM10 and PM2.5)), carbon monoxide (CO), nitrogen dioxide (NO2), sulfur dioxide (SO2), nickel particulate, and formaldehyde. When the conditions of this CBP standard permit are met, including annual, daily, and hourly production limits, concentrations of these pollutants would be below their respective health protective values, including the National Ambient Air Quality Standards (NAAQS) or TCEQ Effects Screening Levels (ESLs).

The NAAQS values for CO, NO2, SO2, and PM are derived to protect human health with an adequate margin of safety to include sensitive populations such as children, the elderly, and individuals that suffer from respiratory diseases such as asthma and chronic obstructive pulmonary disease (COPD). Similar criteria are used to derive the ESLs. Thus, if short-term and long-term emissions do not exceed these values, the operation of facilities with these types of emissions would not pose a threat to human health or welfare. This particular area of Houston has been in compliance with the NAAQS for all of the aforementioned air contaminants and will be required to continue to meet the NAAQS in the future even if those standards change.

The concern regarding the 18 concrete batch plants is addressed in two ways: via the conservatism used to derive the health protective NAAQS and ESLs, which take into consideration cumulative and aggregate exposures; and by the thorough review of air dispersion modeling representations of these types of facilities that are conducted during the development of the CBP standard permit. Modeling data indicate that maximum concentrations of pollutant emissions would typically occur a relatively short distance from the emissions source. Therefore, review of other off-site sources is not necessary when determining approval of registration applications for this particular standard permit. Concrete batch plants located greater than 550 feet from sources with similar emissions are predicted to not exceed the health protective NAAQS or ESLs, even when operating simultaneously. The CBP standard permit requires the owner or operator to locate the concrete batch plant at least 550 feet from any crushing plant or hot mix asphalt plant. If these distance conditions in the standard permit are not met, then sources with similar emissions such as rock crushers, hot mix asphalt plants, or other concrete batch plants cannot operate at the same time.

As discussed earlier, there are layers of conservatism incorporated into the CBP standard permit. This includes the modeling assumptions used to establish the operational limitations, which include fabric or cartridge filter systems to control PM; distance restrictions regarding the location of the concrete batch plant relative to any crushing plant, hot mix asphalt plant, or other concrete batch plant; distance restrictions regarding the location of the suction shroud baghouse exhaust, stationary equipment, stockpiles, or vehicles used for the operation of the concrete batch plant; and material throughput by limiting the site production to, for example, no more than 300 cubic yards in any one hour and no more than 6,000 cubic yards per day. In addition, the NAAQS and ESLs are not only health-protective, but include a margin of safety to accommodate sensitive populations, aggregate exposures, and cumulative exposures. Thus, when the conditions of the CBP standard permit are met, plants operating under these permits are not expected to adversely affect human health, welfare, or the environment.

The comment also refers to areas of Houston where the neighborhoods coexisting with concrete batch plants and metal recycling facilities are characterized as "high risk of asthma and cardiac arrest," according to a scientific study published by Raun and colleagues. TCEQ staff reviewed this publication and has concerns with the interpretation and utilization of data therein. Primary concerns are that the study of correlation between emergency medical service (EMS) calls and criteria pollutants (CO, NO2, SO2, and PM2.5) were in fact inconsistent, indicating a weakness in these associations and suggesting that the pollutants did not cause the EMS calls. The study authors also utilized a highly conservative linear model to estimate risks. Available data suggest that this type of model would overestimate risk for many criteria pollutants and would be inappropriate to use based on the fact that many, if not all, criteria pollutants demonstrate a threshold, meaning that there is a concentration below which harmful effects are not observed. Due to lack of proper controls, inconsistency in the body of available scientific evidence in the study, and acknowledgement of the limitations of their model, the results of these studies may be considered of interest, but not reliably predictive of health effects, particularly at lower, ambient pollutant levels.

Therefore, TCEQ's extensive evaluation clearly indicates that concrete batch plants operating in this area of Houston do not pose a threat to human health or welfare due to the parameters and limitations applied to the CBP standard permit. This conclusion is supported by the TCEQ's monitoring data in the area that demonstrate compliance with the PM NAAQS, which accommodate both aggregate and cumulative exposure. The commission has made no changes to the rules in response to these comments.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; TWC, §5.115, Persons Affected in Commission Hearings; Notice of Application, which requires the commission to determine affected persons and provide certain notice of applications. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission; and THSC, §382.058, concerning Notice of and Hearing on Construction of Concrete Plant Under Permit by Rule, Standard Permit, or Exemption, which prescribes authorization requirements for certain concrete batch plants. In addition, the amendment is also adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the National Ambient Air Quality Standards will be achieved and maintained within each air quality control region of the state.

The adopted amendment implements THSC, §382.056 and §382.058.

§55.152.Public Comment Period.

(a) Public comments must be filed with the chief clerk within the time period specified in the notice. The public comment period shall end 30 days after the last publication of the Notice of Application and Preliminary Decision, except that the time period shall end:

(1) 30 days after the last publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit), or 30 days after Notice of Application and Preliminary Decision if a second notice is required under §39.419 of this title (relating to Notice of Application and Preliminary Decision), for an air quality permit application not otherwise specified in this section;

(2) 30 days after the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision under §39.603 of this title (relating to Newspaper Notice) for a registration for a concrete batch plant under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits), unless the plant is to be temporarily located in or contiguous to the right-of-way of a public works project;

(3) 15 days after the last publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title, or 30 days after Notice of Application and Preliminary Decision if a second notice is required under §39.419 of this title, for a permit renewal under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification);

(4) 45 days after the last publication of the notice of Application and Preliminary Decision for an application for a hazardous waste facility permit, or to amend, extend, or renew or to obtain a Class 3 Modification of such a permit, or 30 days after the publication of Notice of Application and Preliminary Decision for Class 3 modifications of non-hazardous industrial solid waste permits;

(5) 30 days after the mailing of the notice of draft production area authorization under Chapter 331 of this title (relating to Underground Injection Control);

(6) the time specified in commission rules for other specific types of applications; or

(7) as extended by the executive director for good cause.

(b) The public comment period shall automatically be extended to the close of any public meeting.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606423

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-6812


CHAPTER 113. STANDARDS OF PERFORMANCE FOR HAZARDOUS AIR POLLUTANTS AND FOR DESIGNATED FACILITIES AND POLLUTANTS

SUBCHAPTER C. NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES (FCAA, §112, 40 CFR PART 63)

30 TAC §§113.100, 113.120, 113.190, 113.200, 113.290, 113.300, 113.320, 113.330, 113.340, 113.350, 113.380, 113.430, 113.450, 113.560, 113.610, 113.640, 113.660, 113.670, 113.690, 113.700, 113.710, 113.720, 113.730, 113.750, 113.780, 113.810, 113.860, 113.1040, 113.1090, 113.1130, 113.1190, 113.1200, 113.1300, 113.1390

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§113.100, 113.120, 113.190, 113.200, 113.290, 113.300, 113.320, 113.330, 113.340, 113.350, 113.380, 113.430, 113.560, 113.610, 113.640, 113.660, 113.670, 113.690, 113.700, 113.710, 113.720, 113.730, 113.750, 113.780, 113.810, 113.860, 113.1040, 113.1090, 113.1130, 113.1300, and 113.1390; and new §§113.450, 113.1190, and 113.1200.

The amendments to §§113.340, 113.380, 113.690, 113.750, 113.780, and 113.1300 are adopted with changes to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5350) and will be republished. The amendments to §§113.100, 113.120, 113.190, 113.200, 113.290, 113.300, 113.320, 113.330, 113.350, 113.430, 113.560, 113.610, 113.640, 113.660, 113.670, 113.700, 113.710, 113.720, 113.730, 113.810, 113.860, 113.1040, 113.1090, 113.1130, and 113.1390; and new §§113.450, 113.1190, and 113.1200 are adopted without changes and will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rules revise Chapter 113 to incorporate by reference changes that the United States Environmental Protection Agency (EPA) has made to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories, under 40 Code of Federal Regulations (CFR) Part 63. The EPA's changes to 40 CFR Part 63 include amendments to a number of existing NESHAPs, the addition of a new NESHAP covering Wool Fiberglass Manufacturing at area sources, and the promulgation of two NESHAP which replaced standards previously vacated by court actions. Adopted Chapter 113 incorporates by reference amendments and additions that the EPA made to the NESHAP under 40 CFR Part 63 as published through August 3, 2016.

The Federal Clean Air Act (FCAA) Amendments of 1990, §112, requires the EPA to develop national technology-based standards for new and existing sources of hazardous air pollutants (HAPs). The compounds which are considered to be HAPs are listed in FCAA, §112(b). These technology-based standards intended to control HAP emissions are commonly called maximum achievable control technology (MACT) and generally available control technology (GACT) standards. The MACT standards are required to be based on the maximum degree of emission control that is achievable, taking into consideration cost and any non-air quality health and environmental impacts and energy requirements. GACT standards reflect a less stringent level of control (relative to MACT) and are intended to be applied to non-major sources of HAPs, known as area sources. The EPA has the option to apply either MACT or GACT to area sources, at their discretion.

The adopted rules incorporate amendments the EPA promulgated to 31 existing MACT and GACT standards for a variety of source categories. Many of the standards covered in this rulemaking were amended by the EPA as a result of FCAA requirements that the EPA periodically conduct risk assessments on each source category and determine if changes are needed to reduce residual risks or address developments in applicable control technology. Some standards were revised by the EPA in order to remove startup, shutdown, and malfunction (SSM)-related affirmative defense provisions which were vacated in Natural Resources Defense Council v. EPA, 749 F. 3d 1055 (District of Columbia, Circuit (D.C. Cir.) 2014). In addition, the EPA finalized new standards for brick and clay manufacturing to replace the 2003 standards vacated in Sierra Club v. EPA, 479 F. 3d 875 (D.C. Cir. 2007).

Under federal law, affected industries are required to implement the MACT and GACT standards regardless of whether the commission or the EPA is the agency responsible for implementation. As MACT and GACT standards are promulgated or amended by the EPA, the standards are reviewed by commission staff for compatibility with current commission regulations and policies. The commission then incorporates the standards, as appropriate, into Chapter 113 through formal rulemaking procedures. Unless otherwise noted, all incorporations by reference adopted in this rulemaking are without change (meaning that the standards are incorporated as published in the CFR, with no modifications to the text of the regulation being incorporated). After each MACT or GACT standard or amendment is adopted, the commission will seek formal delegation from the EPA under 40 CFR Part 63, Subpart E, Approval of State Programs and Delegation of Federal Authorities, which implements FCAA, §112(l). Upon delegation, the commission will be responsible for administering and enforcing the MACT or GACT requirements.

The commission incorporates the following amendments that the EPA has made to the 40 CFR Part 63, General Provisions, and the federal MACT and GACT standards previously incorporated into the commission rules, by updating the federal promulgation dates and Federal Register (FR) citations stated in the commission rules, as discussed more specifically in the Section by Section Discussion in this preamble. The 34 amended and new standards, along with their corresponding Chapter 113 sections and original incorporation dates if applicable, are listed in the following table (Figure: 30 TAC Chapter 113--Preamble).

Figure: 30 TAC Chapter 113--Preamble (.pdf)

The EPA is continually in the process of revising 40 CFR Part 63, MACT and GACT regulations, and the EPA adopted changes to certain standards which were published too recently to be specifically addressed in the proposal documents for this rulemaking. In the proposal preamble, the commission provided notice that in addition to the changes specifically described in the Section by Section Discussion portion of the proposal preamble, the commission would consider the incorporation by reference of any final amendments made by the EPA after the date the revisions to Chapter 113 were proposed. Accordingly, in this adoption the commission has included certain 2016 amendments to 40 CFR Part 63, Subparts CC, GG, LLL, RRR, UUU, and UUUUU, which were published by the EPA after the proposal documents for this rulemaking were prepared. These recent amendments are generally corrections, clarifications, or updates to compliance dates, and it is administratively more efficient to include these amendments and ensure that Chapter 113, Subchapter C, is as up-to-date as possible, than to address these amendments separately in a later rulemaking. These amendments are discussed further in the appropriate Section by Section Discussion of this preamble.

Section by Section Discussion

§113.100, General Provisions (40 Code of Federal Regulations Part 63, Subpart A)

The commission adopts the amendment to §113.100 by incorporating by reference all amendments to 40 CFR Part 63, Subpart A, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart A, on June 25, 2013 (78 FR 37973); February 27, 2014 (79 FR 11228); March 27, 2014 (79 FR 17340); June 30, 2015 (80 FR 37366); August 19, 2015 (80 FR 50386); September 18, 2015 (80 FR 56700); October 15, 2015 (80 FR 62390); October 26, 2015 (80 FR 65470); December 1, 2015 (80 FR 75178); and December 4, 2015 (80 FR 75817).

The June 25, 2013, amendments to CFR Part 63, Subpart A, revised 40 CFR §63.13(a) to update the mailing address used to submit reports and correspondence to EPA Region VII. Although the change to the EPA Region VII mailing address does not affect states in EPA Region VI such as Texas, it is administratively more efficient to include this amendment than to specifically exclude it. The February 27, 2014, amendments added Methods 3A and 19 to the list of methods not requiring the use of audit samples in 40 CFR §63.7(c), corrected a reference to a section of Performance Specification 2 in 40 CFR §63.8(f)(6)(iii), and revised 40 CFR §63.14 to arrange the materials that are incorporated by reference in alpha-numeric order. The March 27, 2014, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subparts JJJ and PPP. The June 30, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subpart XXX. The August 19, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subparts AA and BB. The September 18, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subpart RRR. The October 15, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subpart LL. The October 26, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subparts JJJJJ and KKKKK. The December 1, 2015, amendments revised 40 CFR §63.14 to incorporate various test methods and reference materials for use with 40 CFR Part 63, Subparts Y, CC, and UUU. The December 4, 2015, amendments revised 40 CFR §63.14 to correct certain paragraph numbering errors which were published as part of the October 26, 2015, amendments to 40 CFR §63.14.

§113.120, Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater (40 Code of Federal Regulations Part 63, Subpart G)

The commission adopts the amendment to §113.120 by incorporating by reference all amendments to 40 CFR Part 63, Subpart G, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart G, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments revised 40 CFR Part 63, Subpart G, to allow the use of Method 316 or Method 8260B in the SW-846 Compendium of Methods to determine HAP concentrations in wastewater streams in 40 CFR §63.144(b)(5)(i).

§113.190, Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks (40 Code of Federal Regulations Part 63, Subpart N)

The commission adopts the amendment to §113.190 by incorporating by reference all amendments to 40 CFR Part 63, Subpart N, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart N, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments added South Coast Air Quality Management District Method 205.1 as a testing option for measuring total chromium.

§113.200, Ethylene Oxide Emissions Standards for Sterilization Facilities (40 Code of Federal Regulations Part 63, Subpart O)

The commission adopts the amendment to §113.200 by incorporating by reference all amendments to 40 CFR Part 63, Subpart O, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart O, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments added California Air Resources Board Method 431 as an alternative to the procedures in 40 CFR §63.365(b) for determining the efficiency at the sterilization chamber vent and corrected an error in a reference to a section in Performance Specification 8.

§113.290, Secondary Lead Smelting (40 Code of Federal Regulations Part 63, Subpart X)

The commission adopts the amendment to §113.290 by incorporating by reference all amendments to 40 CFR Part 63, Subpart X, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart X, on January 3, 2014 (79 FR 367). The January 3, 2014, amendments revised regulatory text to clarify compliance dates and clarify provisions related to monitoring of negative pressure in total enclosures. The amendments also corrected typographical errors in a table listing congeners of dioxins and furans and in the testing requirements for total hydrocarbons.

§113.300, Marine Tank Vessel Loading Operations (40 Code of Federal Regulations Part 63, Subpart Y)

The commission adopts the amendment to §113.300 by incorporating by reference all amendments to 40 CFR Part 63, Subpart Y, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart Y, on February 27, 2014 (79 FR 11228), and December 1, 2015 (80 FR 75178). The February 27, 2014, amendments added Method 25B as an alternative to Method 25A in 40 CFR §63.565(d)(5) for determining the average volatile organic compound (VOC) concentration upstream and downstream of recovery devices, added Method 25B as an alternative method for determining the percent reduction in VOC in 40 CFR §63.565(d)(8), and added Method 25B as an alternative to Method 25A in determining the baseline outlet VOC concentration in 40 CFR §63.565(g). The February 27, 2014, amendments also added a requirement that Method 25B be validated according to Method 301 in §63.565(d)(10). The December 1, 2015, amendments deleted the exclusion for marine vessel loading operations at petroleum refineries and required small marine vessel loading operations and offshore marine vessel loading operations to use submerged filling.

The commission also adopts the revision to the title of §113.300 to "Marine Tank Vessel Loading Operations" to maintain consistency with the title of the corresponding federal regulation in 40 CFR Part 63, Subpart Y.

§113.320, Phosphoric Acid Manufacturing Plants (40 Code of Federal Regulations Part 63, Subpart AA)

The commission adopts the amendment to §113.320 by incorporating by reference all amendments to 40 CFR Part 63, Subpart AA, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart AA, on August 19, 2015 (80 FR 50386). The August 19, 2015, amendments finalized the EPA's residual risk and technology review for the Phosphoric Acid Manufacturing and Phosphate Fertilizer Production source categories. The amendments to 40 CFR Part 63, Subpart AA, included: numeric emission limits for previously unregulated mercury (Hg) and total fluoride emissions from calciners; work practice standards for hydrogen fluoride (HF) emissions from previously unregulated gypsum dewatering stacks and cooling ponds; clarifications to the applicability and monitoring requirements to accommodate process equipment and technology changes; removal of the exemptions for SSM; adoption of work practice standards for periods of startup and shutdown; and revised recordkeeping and reporting requirements for periods of SSM.

§113.330, Phosphate Fertilizers Production Plants (40 Code of Federal Regulations Part 63, Subpart BB)

The commission adopts the amendment to §113.330 by incorporating by reference all amendments to 40 CFR Part 63, Subpart BB, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart BB, on August 19, 2015 (80 FR 50386). The August 19, 2015, amendments finalized the EPA's residual risk and technology review conducted for the Phosphoric Acid Manufacturing and Phosphate Fertilizer Production source categories. The amendments to 40 CFR Part 63, Subpart BB, included: clarifications to applicability and monitoring requirements to accommodate process equipment and technology changes; removal of the exemptions for SSM; adoption of work practice standards for periods of startup and shutdown; and revised recordkeeping and reporting requirements for periods of SSM.

§113.340, Petroleum Refineries (40 Code of Federal Regulations Part 63, Subpart CC)

The commission adopts the amendment to §113.340 by incorporating by reference all amendments to 40 CFR Part 63, Subpart CC, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart CC, on June 20, 2013 (78 FR 37133); December 1, 2015 (80 FR 75178); and July 13, 2016 (81 FR 45232). The June 20, 2013, amendments revised the standards for heat exchange systems to include an alternative monitoring option that would allow owners and operators at existing sources to monitor quarterly instead of monthly. The June 20, 2013, amendments also revised the definition of heat exchange system to clarify the applicability of monitoring and repair provisions for individual heat exchangers within the heat exchange system. Finally, the June 20, 2013, amendments provided for monitoring at an aggregated location for once-through cooling water heat exchange systems, provided that the combined cooling water flow rate at the monitoring location does not exceed 40,000 gallons per minute.

The December 1, 2015, amendments finalized the residual risk and technology review the EPA conducted for the Petroleum Refinery source categories regulated under Refinery MACT 1 (40 CFR Part 63, Subpart CC) and Refinery MACT 2 (40 CFR Part 63, Subpart UUU). These amendments included expanded storage vessel emission control requirements, new provisions to require and support fenceline monitoring for benzene emissions, and revised standards for decoking operations and flares used as pollution control devices. The amendments also included work practice standards for minimizing emissions from pressure relief devices (PRDs), emergency flaring events, and maintenance work on process equipment containing HAP or VOC. The July 13, 2016, amendments adjusted the compliance date for requirements that apply to maintenance vents during periods of startup, shutdown, maintenance, or inspection for sources constructed or reconstructed on or before June 30, 2014; amended the compliance dates for requirements that apply during startup, shutdown, or hot standby for fluid catalytic cracking units (FCCUs) and startup and shutdown for sulfur recovery units (SRU) constructed or reconstructed on or before June 30, 2014; and made various technical corrections and clarifications to the rule.

§113.350, Off-Site Waste and Recovery Operations (40 Code of Federal Regulations Part 63, Subpart DD)

The commission adopts the amendment to §113.350 by incorporating by reference all amendments to 40 CFR Part 63, Subpart DD, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart DD, on March 18, 2015 (80 FR 14248). The March 18, 2015, amendments finalized the EPA's residual risk and technology review conducted for the Off-Site Waste and Recovery Operations source category. These amendments revised storage tank requirements to require increased control of emissions for tanks in a specific size range that also contain material above a specified vapor pressure, and revised equipment leak requirements to remove the option to comply with 40 CFR Part 61, Subpart V, instead of 40 CFR Part 63, Subpart H. The amendments also revised the standards to eliminate the SSM exemption, so that the standards in this rule apply at all times. In addition, the March 18, 2015, amendments added requirements for reporting of performance testing through the Electronic Reporting Tool (ERT); revised routine maintenance provisions; clarified provisions pertaining to open-ended valves and lines; added monitoring requirements for PRDs; and clarified provisions for certain performance test methods and procedures.

§113.380, Aerospace Manufacturing and Rework Facilities (40 Code of Federal Regulations Part 63, Subpart GG)

The commission adopts the amendment to §113.380 by incorporating by reference all amendments to 40 CFR Part 63, Subpart GG, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart GG, on February 27, 2014 (79 FR 11228); December 7, 2015 (80 FR 76152); and August 3, 2016 (81 FR 51114). The February 27, 2014, amendments removed an incorrect reference to the location of Method 319 in 40 CFR §63.750(o). The December 7, 2015, amendments finalized the EPA's residual risk and technology review conducted for this source category. The December 7, 2015, amendments added limitations to reduce organic and inorganic emissions of HAP from specialty coating operations; removed exemptions for periods of SSM so that affected units will be subject to the emission standards at all times; and revised provisions to address recordkeeping and reporting requirements applicable to SSM. The December 7, 2015, amendments also added a requirement to report performance testing through the EPA's Compliance and Emissions Data Reporting Interface (CEDRI), and revised rule language to clarify applicability and compliance demonstration provisions. The August 3, 2016, direct final amendments revised 40 CFR Part 63, Subpart GG, to clarify the compliance date for the handling and storage of waste.

§113.430, Primary Aluminum Reduction Plants (40 Code of Federal Regulations Part 63, Subpart LL)

The commission adopts the amendment to §113.430 by incorporating by reference all amendments to 40 CFR Part 63, Subpart LL, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart LL, on October 15, 2015 (80 FR 62390). The October 15, 2015, amendments finalized the EPA's residual risk and technology review conducted for the Primary Aluminum Production source category. These amendments included technology-based standards and work practice standards reflecting performance of MACT, and related monitoring, reporting, and testing requirements for several previously unregulated HAPs from various emissions sources. The amendments also finalized new and revised emission standards for certain HAP emissions from potlines using the Soderberg technology, added a requirement for electronic reporting of compliance data, and eliminated the exemptions for periods of SSM.

§113.450, Wool Fiberglass Manufacturing at Area Sources (40 Code of Federal Regulations Part 63, Subpart NN)

The commission adopts the amendment to §113.450, which would incorporate by reference the final promulgated rules in 40 CFR Part 63, Subpart NN, adopted by the EPA on July 29, 2015 (80 FR 45280). This GACT standard applies to facilities which manufacture wool fiberglass that are area sources. HAPs emitted from these facilities include chromium compounds, formaldehyde, methanol, and phenol.

§113.560, Generic Maximum Achievable Control Technology Standards (40 Code of Federal Regulations Part 63, Subpart YY)

The commission adopts the amendment to §113.560 by incorporating by reference all amendments to 40 CFR Part 63, Subpart YY, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart YY, on October 8, 2014 (79 FR 60898). The October 8, 2014, amendments finalized the EPA's residual risk and technology review conducted for the Acrylic and Modacrylic Fibers Production, Amino/Phenolic Resins Production and Polycarbonate Production source categories. The amendments revised the standards to require facilities to comply with the leak detection and repair requirements of 40 CFR Part 63, Subpart UU, rather than 40 CFR Part 63, Subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. The amendments also established standards for previously unregulated HAP emissions from spinning lines that use a spin dope produced from a solution polymerization process at existing facilities. Finally, the amendments revised requirements for PRDs, revised reporting requirements to provide for electronic reporting of certain performance test information, and eliminated the SSM exemption.

§113.610, Mineral Wool Production (40 Code of Federal Regulations Part 63, Subpart DDD)

The commission adopts the amendment to §113.610 by incorporating by reference all amendments to 40 CFR Part 63, Subpart DDD, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart DDD, on July 29, 2015 (80 FR 45280). The July 29, 2015, amendments finalized the EPA's residual risk and technology reviews conducted for the Mineral Wool Production and Wool Fiberglass Manufacturing source categories. The amendments to 40 CFR Part 63, Subpart DDD, included the removal of formaldehyde as a surrogate for phenol and methanol and the removal of carbon monoxide as a surrogate for carbonyl sulfide (COS). The amendments also revised cupola emission limits for COS, hydrochloric acid (HCl), and HF and finalized emission limits for formaldehyde, methanol, and phenol for bonded lines. In addition, the amendments allowed the use of EPA Methods 26A and 320 for measuring concentrations of HCl and HF, revised various performance testing requirements, added requirements for reporting of performance testing through the ERT, and added several definitions to clarify terminology used in the standards. These amendments also eliminated the SSM exemption and established work practice standards for periods of startup and shutdown.

§113.640, Pharmaceuticals Production (40 Code of Federal Regulations Part 63, Subpart GGG)

The commission adopts the amendment to §113.640 by incorporating by reference all amendments to 40 CFR Part 63, Subpart GGG, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart GGG, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments revised the 40 CFR §63.1251 definition of process vent to allow Method 320 as an alternative to Method 18 for demonstrating that a vent is not a process vent.

§113.660, Flexible Polyurethane Foam Production (40 Code of Federal Regulations Part 63, Subpart III)

The commission adopts the amendment to §113.660 by incorporating by reference all amendments to 40 CFR Part 63, Subpart III, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart III, on August 15, 2014 (79 FR 48073). The August 15, 2014, amendments finalized the EPA's residual risk and technology review conducted for the Flexible Polyurethane Foam (FPUF) Production source category. The amendments added a prohibition on the use of HAP or HAP-based products as auxiliary blowing agents for all slabstock FPUF production operations, eliminated the SSM exemption so that the standards apply at all times, added requirements for electronic reporting of performance testing through the ERT, clarified the leak detection methods allowed for diisocyanate storage vessels at slabstock foam production facilities, and added a schedule for delay of leak repairs for valves and connectors.

§113.670, Group IV Polymers and Resins (40 Code of Federal Regulations Part 63, Subpart JJJ)

The commission adopts the amendment to §113.670 by incorporating by reference all amendments to 40 CFR Part 63, Subpart JJJ, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart JJJ, on March 27, 2014 (79 FR 17340). The March 27, 2014, amendments finalized the EPA's residual risk and technology review conducted for the Group IV Polymers and Resins source category. The amendments added language to require electronic reporting of performance test results, added a requirement to monitor PRDs in organic HAP service, and eliminated the SSM exemption so that emission standards would apply at all times. In addition, the amendments addressed certain emissions that were not previously regulated, provided for alternative compliance demonstration methods during periods of startup and shutdown, and lifted the stay of requirements for process contact cooling towers at existing sources in one Polymers and Resins subcategory.

§113.690, Portland Cement Manufacturing Industry (40 Code of Federal Regulations Part 63, Subpart LLL)

The commission adopts the amendment to §113.690 by incorporating by reference all amendments to 40 CFR Part 63, Subpart LLL, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart LLL, on July 27, 2015 (80 FR 44772) and July 25, 2016 (81 FR 48356). The July 27, 2015, amendments clarified the definitions of rolling average, operating day, and run average; restored a table of emission limits which apply until September 9, 2015; provided a scaling alternative for sources that have a wet scrubber, tray tower, or dry scrubber relative to the HCl compliance demonstration; added a temperature parameter to the startup and shutdown requirements; and clarified language related to span values for Hg and HCl measurements. The amendments also removed an affirmative defense provision from the rule which was vacated by a court action and corrected a number of typographical and grammatical errors and errors in various dates. The July 25, 2016, amendments provided a temporary compliance alternative for sources that would otherwise be required to use an HCl continuous emissions monitoring system to demonstrate compliance with the HCl emissions limit, and restored regulatory text requiring the reporting of clinker production and kiln feed rates that was inadvertently deleted from the standard.

§113.700, Pesticide Active Ingredient Production (40 Code of Federal Regulations Part 63, Subpart MMM)

The commission adopts the amendment to §113.700 by incorporating by reference all amendments to 40 CFR Part 63, Subpart MMM, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart MMM, on March 27, 2014 (79 FR 17340). The March 27, 2014, amendments finalized the EPA's residual risk and technology review conducted for this source category. The amendments clarified that sources may submit a precompliance plan to request alternative compliance options after the compliance date has passed or construction or preconstruction applications have already been submitted. The amendments also clarified provisions for packed-bed scrubbers in 40 CFR §63.1366(b)(1)(ii), and revised the definition for "'pesticide active ingredient." In addition, the amendments added language to require electronic reporting of performance test results, added a requirement to monitor PRDs in organic HAP service, and eliminated the SSM exemption so that emissions standards would apply at all times. The amendments also revised Table 1 of 40 CFR Part 63, Subpart MMM, (the General Provisions applicability table), in several respects relating to SSM requirements.

§113.710, Wool Fiberglass Manufacturing (40 Code of Federal Regulations Part 63, Subpart NNN)

The commission adopts the amendment to §113.710 by incorporating by reference all amendments to 40 CFR Part 63, Subpart NNN, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart NNN, on July 29, 2015 (80 FR 45280). The July 29, 2015, amendments finalized the EPA's residual risk and technology reviews conducted for the Mineral Wool Production and Wool Fiberglass Manufacturing source categories. The amendments to 40 CFR Part 63, Subpart NNN, included revised chromium and particulate matter (PM) emission limits for certain sources, new pollutant-specific emissions limits for HAPs such as methanol and phenol that were previously regulated under the surrogate compound formaldehyde, and established new emission limits for certain other HAPs that were previously unregulated. The amendments also finalized first-time GACT standards for gas-fired glass-melting furnaces at area sources, added requirements for electronically reporting performance test results through the ERT, eliminated the SSM exemption, and established revised work practice standards for periods of startup and shutdown.

§113.720, Manufacture of Amino/Phenolic Resins (40 Code of Federal Regulations Part 63, Subpart OOO)

The commission adopts the amendment to §113.720 by incorporating by reference all amendments to 40 CFR Part 63, Subpart OOO, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart OOO, on October 8, 2014 (79 FR 60898). The October 8, 2014, amendments finalized the EPA's residual risk and technology reviews conducted for the Acrylic and Modacrylic Fibers Production, Amino/Phenolic Resins Production (APR) and Polycarbonate Production source categories. The amendments to 40 CFR Part 63, Subpart OOO, revised the applicability of the APR new source MACT standards to include smaller capacity storage vessels and storage vessels containing liquids with lower vapor pressures. The amendments also clarified that pressure releases from PRDs in organic HAP service to the atmosphere are prohibited and specified provisions for monitoring PRDs in HAP service. In addition, the amendments established standards for certain previously-unregulated HAP emissions from storage vessels and continuous process vents at existing facilities. The amendments also added requirements for electronically reporting performance test results through the ERT and eliminated the SSM exemption.

§113.730, Polyether Polyols Production (40 Code of Federal Regulations Part 63, Subpart PPP)

The commission adopts the amendment to §113.730 by incorporating by reference all amendments to 40 CFR Part 63, Subpart PPP, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart PPP, on March 27, 2014 (79 FR 17340). The March 27, 2014, amendments finalized the EPA's residual risk and technology review conducted for this source category. The amendments to 40 CFR Part 63, Subpart PPP, clarified that pressure releases from PRDs in organic HAP service to the atmosphere are prohibited, and specified provisions for monitoring PRDs in HAP service. The amendments also clarified requirements for precompliance reports, added requirements for electronically reporting performance test results through the ERT, eliminated the SSM exemption, and revised associated SSM requirements.

§113.750, Secondary Aluminum Production (40 Code of Federal Regulations Part 63, Subpart RRR)

The commission adopts the amendment to §113.750 by incorporating by reference all amendments to 40 CFR Part 63, Subpart RRR, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart RRR, on February 27, 2014 (79 FR 11228); September 18, 2015 (80 FR 56700); and June 13, 2016 (81 FR 38085). The February 27, 2014, amendments added Method 26 as an alternative to Method 26A for determining HCl concentration. The September 18, 2015, amendments finalized the EPA's residual risk and technology review conducted for this source category. These amendments revised rule language to clarify applicability of certain rule provisions to area sources and added or revised certain technical definitions. The amendments also provided criteria for changing furnace classifications and established an allowed frequency of such changes. In addition, the amendments eliminated the SSM exemption and revised associated SSM requirements, revised various provisions relating to performance testing, and added requirements for electronically reporting performance test results through the ERT. The June 13, 2016, direct final amendments corrected inadvertent errors, clarified requirements for initial performance tests and submittal of malfunction reports, provided an additional option for new round top furnaces to account for unmeasured emissions during compliance testing, and clarified what constitutes a change in furnace operating mode. The direct final rule also updated website addresses for the EPA's ERT and CEDRI.

§113.780, Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units (40 Code of Federal Regulations Part 63, Subpart UUU)

The commission adopts the amendment to §113.780 by incorporating by reference all amendments to 40 CFR Part 63, Subpart UUU, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart UUU, on December 1, 2015 (80 FR 75178) and July 13, 2016 (81 FR 45232). The December 1, 2015, amendments finalized the EPA's residual risk and technology review conducted for this source category. These amendments removed the incremental PM limit when burning liquid or solid fuels and finalized a 20% opacity limit based on a three-hour average. The amendments also added an option for bag leak detectors to be used as an alternative to a continuous opacity monitoring system, and added requirements for daily checks of the air or water pressure to spray nozzles on wet scrubbers. In addition, the amendments required periodic FCCU performance testing at a frequency of once every five years and incorporated enhanced flare operational requirements directly into the Refinery MACT. The amendments also eliminated the SSM exemption and revised associated SSM requirements, established alternative emission standards for certain startup and shutdown situations, and added requirements for reporting performance test results through the ERT. The July 13, 2016, amendments adjusted the compliance date for requirements that apply to maintenance vents during periods of startup, shutdown, maintenance, or inspection for sources constructed or reconstructed on or before June 30, 2014; amended the compliance dates for requirements that apply during startup, shutdown, or hot standby for FCCUs and startup and shutdown for SRUs constructed or reconstructed on or before June 30, 2014; and made various technical corrections and clarifications to the rule.

§113.810, Ferroalloys Production: Ferromanganese and Silicomanganese (40 Code of Federal Regulations Part 63, Subpart XXX)

The commission adopts the amendment to §113.810 by incorporating by reference all amendments to 40 CFR Part 63, Subpart XXX, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart XXX, on June 30, 2015 (80 FR 37366). The June 30, 2015, amendments finalized the EPA's residual risk and technology review conducted for this source category. The amendments revised PM standards for electric arc furnaces, metal oxygen refining processes, and crushing and screening operations and expanded requirements to control process fugitive emissions from furnace operations, tapping, casting, and other processes. The amendments also finalized opacity limits and established required monitoring using a digital camera opacity technique in lieu of Method 9. The amendments also finalized emission standards for certain previously unregulated HAPs (formaldehyde, HCl, Hg, and polycyclic aromatic hydrocarbons). In addition, the amendments eliminated the SSM exemption and added requirements for reporting performance test results through the ERT.

§113.860, Manufacturing of Nutritional Yeast (40 Code of Federal Regulations Part 63, Subpart CCCC)

The commission adopts the amendment to §113.860 by incorporating by reference all amendments to 40 CFR Part 63, Subpart CCCC, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart CCCC, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments revised Table 2 of 40 CFR Part 63, Subpart CCCC, to delete the requirement to use Methods 1, 2, 3, and 4 when measuring VOC by Method 25A. The commission also adopts the revision to this section title for consistency with other sections in this subchapter, by using the full term "Code of Federal Regulations" rather than the acronym "CFR."

§113.1040, Cellulose Products Manufacturing (40 Code of Federal Regulations Part 63, Subpart UUUU)

The commission adopts the amendment to §113.1040 by incorporating by reference all amendments to 40 CFR Part 63, Subpart UUUU, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart UUUU, on February 27, 2014 (79 FR 11228). The February 27, 2014, amendments revised Table 4 of 40 CFR Part 63, Subpart UUUU, to allow Method 320 as an alternative to Method 18 for determining control device efficiency.

§113.1090, Reciprocating Internal Combustion Engines (40 Code of Federal Regulations Part 63, Subpart ZZZZ)

The commission adopts the amendment to §113.1090 by incorporating by reference all amendments to 40 CFR Part 63, Subpart ZZZZ, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart ZZZZ, on March 6, 2013 (78 FR 14457), and February 27, 2014 (79 FR 11228). The March 6, 2013, amendments corrected several typographical errors in Table 2c of 40 CFR Part 63, Subpart ZZZZ. The February 27, 2014, amendments revised Table 4 of 40 CFR Part 63, Subpart ZZZZ, to clarify that a heated probe is not necessary when using ASTM D6522 to measure oxygen or carbon dioxide concentrations and deleted the requirement to use Method 1 or 1A when testing gaseous emissions from engines with smaller ducts.

§113.1130, Industrial, Commercial, and Institutional Boilers and Process Heaters Major Sources (40 Code of Federal Regulations Part 63, Subpart DDDDD)

The commission adopts the amendment to §113.1130 by incorporating by reference all amendments to 40 CFR Part 63, Subpart DDDDD, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart DDDDD, on November 20, 2015 (80 FR 72790). The November 20, 2015, amendments revised the definitions of startup and shutdown and revised the work practice standards which apply during these periods. The amendments also removed affirmative defense provisions which applied during periods of malfunction. In addition, the amendments included a number of technical corrections, clarifications, and corrections of various typographical errors.

§113.1190, Brick and Structural Clay Products Manufacturing (40 Code of Federal Regulations Part 63, Subpart JJJJJ)

The commission adopts new §113.1190 by incorporating by reference the final promulgated rules in 40 CFR Part 63, Subpart JJJJJ, adopted by the EPA on October 26, 2015 (80 FR 65470). This MACT standard applies to brick and structural clay production facilities which are major sources. Brick and structural clay product manufacturing facilities typically process raw clay and shale, form the processed materials into bricks or shapes, and dry and fire the bricks or shapes. HAPs emitted from these facilities include Hg, non-Hg metal HAPs, and acid gases such as HF, hydrogen chloride, and chlorine. The standards adopted by the EPA on October 26, 2015, that are incorporated into §113.1190, were developed in response to a 2007 court action which vacated the original brick and structural clay MACT standards adopted by the EPA in 2003 (Sierra Club v. EPA, 479 F.3d 875, 876 (D.C. Cir. 2007)).

§113.1200, Clay Ceramics Manufacturing (40 Code of Federal Regulations Part 63, Subpart KKKKK)

The commission adopts new §113.1200 by incorporating by reference the final promulgated rules in 40 CFR Part 63, Subpart KKKKK, adopted by the EPA on October 26, 2015 (80 FR 65470), as amended December 4, 2015 (80 FR 75817). This MACT standard applies to clay production facilities which are major sources. The Clay Ceramics Manufacturing source category includes facilities that manufacture pressed floor tile, pressed wall tile, and other pressed tile; or sanitaryware such as toilets and sinks. HAPs emitted from these facilities include Hg, non-Hg metal HAPs, dioxins, furans, and acid gases such as HF, HCl, and chlorine. The standards adopted by the EPA on October 26, 2015, that are incorporated into §113.1200, were developed in response to a 2007 court action which vacated the original clay ceramics manufacturing MACT standard adopted by the EPA in 2003 (Sierra Club v. EPA, 479 F.3d 875, 876 (D.C. Cir. 2007)). The December 4, 2015, amendments corrected minor typographical errors in the standards.

§113.1300, Coal- and Oil-Fired Electric Utility Steam Generating Units (40 Code of Federal Regulations Part 63, Subpart UUUUU)

The commission adopts the amendment to §113.1300 by incorporating by reference all amendments to 40 CFR Part 63, Subpart UUUUU, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart UUUUU, on November 19, 2014 (79 FR 68777); March 24, 2015 (80 FR 15510); and April 6, 2016 (81 FR 20172). The November 19, 2014, amendments revised numerous startup and shutdown-related provisions, including clarifications to certain definitions relating to startup and shutdown, and finalized an alternative work practice compliance option for startup and shutdown periods. The March 24, 2015, amendments required owners or operators of affected sources to submit certain required emissions and compliance reports to the EPA through the Emissions Collection and Monitoring Plan System Client Tool, and the amendments temporarily suspended the requirement for owners or operators of affected sources to submit certain reports using the CEDRI. The April 6, 2016, amendments made a number of technical corrections and clarifications, and removed affirmative defense provisions associated with malfunctions.

§113.1390, Polyvinyl Chloride and Copolymers Production Area Sources (40 Code of Federal Regulations Part 63, Subpart DDDDDD)

The commission adopts the amendment to §113.1390 by incorporating by reference all amendments to 40 CFR Part 63, Subpart DDDDDD, since this section was last amended. During this period, the EPA amended 40 CFR Part 63, Subpart DDDDDD, on February 4, 2015 (80 FR 5938). The February 4, 2015, amendments withdrew the total non-vinyl chloride organic HAP process wastewater emission standards for new and existing polyvinyl chloride and copolymers area sources.

Final Regulatory Impact Analysis Determination

The commission reviewed the rulemaking in light of the Regulatory Impact Analysis (RIA) requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirement to prepare a RIA.

A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The specific intent of these adopted rules is to adopt amendments to a number of existing NESHAPs incorporated into Chapter 113 and adopt incorporations of three NESHAPs not yet incorporated into Chapter 113, two of which replaced standards previously vacated by court actions. The NESHAPs are promulgated by the EPA for source categories mandated by 42 United States Code (USC), §7412 and are required to be included in operating permits by 42 USC, §7661a. These NESHAPs are technology-based standards commonly referred to as MACT or GACT standards which the EPA develops to regulate emissions of HAPs as required under the FCAA. Certain sources of HAPs will be affected and stationary sources are required to comply with federal standards whether or not the commission adopts the standards or takes delegation from the EPA. As discussed in the Fiscal Note of the rulemaking proposal, the adopted rules are not anticipated to add any significant additional costs to affected individuals or businesses beyond what is already required to comply with federal MACT or GACT standards on the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a RIA for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

Under 42 USC, §7661a, states are required to have federal operating permit programs that provide authority to issue permits and assure compliance with each applicable standard, regulation, or requirement under the FCAA, including NESHAPs, which are required under 42 USC, §7412. Similar to requirements in 42 USC, §7410, regarding the requirement to adopt and implement plans to attain and maintain the National Ambient Air Quality Standards, states are not free to ignore requirements in 42 USC, §7661a, and must develop and submit programs to provide for operating permits for major sources that include all applicable requirements of the FCAA.

The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill 633 (SB 633 or bill) during the 75th Texas Legislature, 1997. The intent of SB 633 was to require agencies to conduct a RIA of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission in order to meet a federal requirement was considered to be a major environmental rule that exceeds federal law, then each of those rules would require the full RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA, and in fact, creates no additional impacts since the adopted rules do not modify the federal NESHAP, but are incorporations by reference, which do not change the federal requirements.

For these reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially un-amended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ) superseded by statute on another point of law, Texas Tax Code, §112.108, Other Actions Prohibited, as recognized in, First State Bank of Dumas v. Sharp, 863 S.W. 2d 81, 83, (Tex. App. Austin 1993, no writ.); Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Berry v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978))

The commission's interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (See Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. As discussed in this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

The adopted rules implement requirements of the FCAA. The NESHAP standards being incorporated into state law are federal technology-based standards that are required by 42 USC, §7412, required to be included in permits under 42 USC, §7661a, adopted by reference without modification or substitution, and will not exceed any standard set by state or federal law. These rules are not an express requirement of state law. The adopted rules do not exceed a requirement of a delegation agreement or a contract between state and federal government, as the EPA delegates the NESHAP to Texas in accordance with the delegation procedures codified in 40 CFR Part 63. The amendments were not developed solely under the general powers of the agency, but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the Statutory Authority section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this adopted rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether the adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply.

Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and (ii) is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect."

The commission completed a takings impact analysis for the adopted rulemaking action under the Texas Government Code, §2007.043. The specific intent of these adopted rules is to adopt amendments to a number of existing NESHAPs incorporated into Chapter 113 and adopt incorporations of three NESHAPs not yet incorporated into Chapter 113. The NESHAPs are promulgated by the EPA for source categories mandated by 42 USC, §7412 and required to be included in operating permits by 42 USC, §7661a. These NESHAPs are technology-based standards commonly referred to as MACT or GACT standards which the EPA develops to regulate emissions of HAPs as required under the FCAA. Certain sources of HAPs will be affected and stationary sources are required to comply with federal standards whether or not the commission adopts the standards or takes delegation from the EPA. The adopted rules do not create any additional burden on private real property. Under federal law, the affected industries will be required to comply with the NESHAPs regardless of whether the commission or the EPA is the agency responsible for implementation of the NESHAPs. The adopted rules do not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adoption does not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the adopted rulemaking does not cause a taking under the Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that the adoption is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §505.22, and found the adopted rulemaking is consistent with the applicable CMP goals and policies. The CMP goal applicable to this adopted rulemaking action is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1), Goals). The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §501.32, Policies for Emission of Air Pollutants). The adopted rules incorporate federal regulations concerning emissions of HAPs from certain industries into Chapter 113, allowing the commission to enforce those standards. This would tend to benefit the environment because it would result in lower emissions of HAPs. Therefore, in accordance with 31 TAC §505.22(e), Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program, the commission affirms that this rulemaking is consistent with CMP goals and policies.

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies, and because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas.

The commission invited public comment regarding the consistency of the proposed rules with the CMP during the public comment period. No comments were received.

Effect on Sites Subject to the Federal Operating Permits Program

Chapter 113 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. Owners or operators subject to the Federal Operating Permits Program must, consistent with the revision process in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permits to include the new Chapter 113 requirements. In addition, owners and operators of area sources should be aware that federal rules require certain area source categories to obtain a federal operating permit.

Public Comment

The commission offered a public hearing on August 18, 2016. The comment period closed on August 22, 2016. No oral or written comments on the proposed rules were received.

Statutory Authority

The amendments and new sections are adopted under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendments and new sections are also adopted under Texas Healthy and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning the State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act; and THSC, §382.051, concerning Permitting Authority of the Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act.

The adopted amendments and new sections implement THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, and 382.051.

§113.340.Petroleum Refineries (40 Code of Federal Regulations Part 63, Subpart CC).

The Petroleum Refineries Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CC, is incorporated by reference as amended through July 13, 2016 (81 FR 45232).

§113.380.Aerospace Manufacturing and Rework Facilities (40 Code of Federal Regulations Part 63, Subpart GG).

The Aerospace Manufacturing and Rework Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GG, is incorporated by reference as amended through August 3, 2016 (81 FR 51114).

§113.690.Portland Cement Manufacturing Industry (40 Code of Federal Regulations Part 63, Subpart LLL).

The Portland Cement Manufacturing Industry Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart LLL, is incorporated by reference as amended through July 25, 2016 (81 FR 48356).

§113.750.Secondary Aluminum Production (40 Code of Federal Regulations Part 63, Subpart RRR).

The Secondary Aluminum Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RRR, is incorporated by reference as amended through June 13, 2016 (81 FR 38085).

§113.780.Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units (40 Code of Federal Regulations Part 63, Subpart UUU).

The Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UUU, is incorporated by reference as amended through July 13, 2016 (81 FR 45232).

§113.1300.Coal- and Oil-Fired Electric Utility Steam Generating Units (40 Code of Federal Regulations Part 63, Subpart UUUUU).

The Coal- and Oil-Fired Electric Utility Steam Generating Units Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UUUUU, is incorporated by reference as amended through April 6, 2016 (81 FR 20172).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606433

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2141


CHAPTER 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §114.100 and §114.305; and the repeal of §§114.211 - 114.217 and 114.219.

The amendments to §114.100 and §114.305; and the repeal of §§114.211 - 114.217 and 114.219 are adopted without changes as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5361) and will not be republished.

Adopted revisions to §114.100 and §114.305 will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). Because of the adopted repeal of §§114.211 - 114.217 and 114.219, the TCEQ is withdrawing these rules from the EPA's consideration as a SIP revision. Additionally, it has come to the commission's attention that while §114.100 is approved as part of the SIP the section is not listed on the table titled "EPA Approved Regulations in the Texas SIP" in 40 Code of Federal Regulations (CFR) Part 52, §52.2270(c). The Oxygenated Fuels rule (previously numbered as §114.13) was originally approved by the EPA on September 12, 1994, (Federal Register Document No. 94-22398). The EPA most recently acknowledged §114.100 as included in the SIP in the final approval of the El Paso County Carbon Monoxide Maintenance Plan (73 FR 45162). The omission of §114.100 from 40 CFR §52.2270(c) is an oversight by the EPA.

Background and Summary of the Factual Basis for the Adopted and Repealed Rules

The current state regulations for the Voluntary Accelerated Vehicle Retirement (VAVR) program, as specified in Chapter 114 Vehicle Scrappage Program rules, §§114.211 - 114.217 and 114.219, Subchapter F, Division 2 were adopted by the commission on April 19, 2000, at the request of stakeholders in the Dallas-Fort Worth (DFW) ozone nonattainment area as an air pollution control strategy to reduce nitrogen oxides (NOX) and other emissions to assist in achieving attainment of the National Ambient Air Quality Standard for the 1990 one-hour ozone standard. The adopted VAVR program regulations and accompanying SIP revision were the result of a coordinated development process involving the EPA, the commission, local elected officials, citizens, industrial stakeholders, air quality researchers, and hired consultants. The SIP revision, which incorporated the VAVR program rules, was submitted to the EPA on April 28, 2000.

Subsequent to the adoption of the VAVR program, the Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) was authorized by House Bill 2134, 77th Texas Legislature, 2001. The LIRAP provides funds to participating counties to assist low-income individuals with repairs, retrofits, or retirement of vehicles that fail an emissions test or are at least 10 years old. The LIRAP has been successfully implemented in 16 Texas counties. Due to the success of the LIRAP, the VAVR program never became a viable program in any region of the state including the DFW area that had originally requested it as an air pollution control strategy. The EPA has taken no action on the submitted SIP revision that incorporated these rules. The adopted repeal of the VAVR program removes obsolete rules that provide no current benefit to the state and are no longer necessary since the adoption and implementation of the LIRAP.

The adopted amendments make minor revisions to certain test method requirements in §114.100 and §114.305. The current state regulations for the approved test method for the oxygen requirements for gasoline in §114.100 requires the use of American Society for Testing and Materials (ASTM) D4815. The adopted amendment to §114.100 requires regulated entities to use the most current, or "active," version of the ASTM and prevent the use of obsolete versions of this test standard. The current state regulations for the approved test method to determine compliance with the Chapter 114 Reid vapor pressure (RVP) control requirements in §114.301 as specified in §114.305 require the use of the ASTM Test Method D5191-99 (Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method)), which is the version of the ASTM test method approved by the ASTM in 1999 but is now obsolete. The most current version of the ASTM D5191 test method was approved by the ASTM in 2013. The executive director has previously approved requests from regulated entities for minor modifications to this test method, as permitted under §114.305(b), to allow the use of the newer version of this test method for consistency with the industry's current testing practices. The adopted amendment to §114.305 requires regulated entities to use the most current, or "active," version of the ASTM D5191 Test Method for determining compliance with the RVP standards specified in §114.301. This adopted action removes the current need for the executive director to approve minor modifications to obsolete versions of this standard test method, such as the ASTM Test Method D5191-99 that is currently referenced as the approved test method.

Section by Section Discussion

To conform to TCEQ and Texas Register formatting requirements, non-substantive revisions were made throughout the adopted amendments to correct citations, acronym usage, and other minor issues.

Subchapter D: Oxygen Requirements for Gasoline

§114.100, Oxygenated Fuels

The commission adopts the amendment §114.100 to replace the obsolete reference to "Texas Natural Resource Conservation Commission" and "commission" with "executive director" in subsections (b), (c), and (d), and to specify the "active version" of the ASTM Test Method D4815 referenced in subsection (e)(2) for clarity and consistency with the current rules.

Subchapter F: Vehicle Retirement and Mobile Emission Reduction Credits

Division 2: Vehicle Scrappage Program

The commission adopts the repeal of Chapter 114, Subchapter F, Division 2, §§114.211 - 114.217 and 114.219, to remove the VAVR program regulations. The VAVR program is an obsolete program that provides no current benefit to the state and is no longer considered viable since the adoption and implementation of the LIRAP.

Subchapter H: Low Emission Fuels

Division 1: Gasoline Volatility

§114.305, Approved Test Methods

The commission adopts the amendment to §114.305 to specify that compliance with the RVP limits in §114.301 must be determined by the active version of the ASTM Test Method D5191 (Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method)) for consistency with the current rules and to lessen obsolescence due to future revisions to the testing method.

Final Regulatory Impact Analysis Determination

The commission reviewed this adopted rulemaking in light of the Regulatory Impact Analysis requirements of Texas Government Code, §2001.0225, and determined that this adopted rulemaking is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "major environmental rule." A "major environmental rule" means "a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state." Additionally, this adopted rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a).

Texas Government Code, §2001.0225 applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking adopts the repeal of the VAVR program and makes minor revisions to §114.100 and §114.305. The adopted revision to §114.305 requires regulated entities to use the most current, or "active," version of the ASTM D5191 Test Method for determining compliance with the RVP standards specified in §114.301. Neither of these adopted changes exceed a standard set by federal law. In addition, these adopted changes do not exceed an express requirement of state law and are not adopted solely under the general powers of the agency, but are specifically authorized by the provisions cited in the Statutory Authority section of this preamble. Finally, these changes do not exceed a requirement of a delegation agreement or contract to implement a state and federal program.

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

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The specific intent of this adopted rulemaking is to repeal the VAVR program in addition to making minor changes to require regulated entities to use the most current, or "active," version of the ASTM D5191 Test Method for determining compliance with the RVP standards specified in §114.301. Nevertheless, the commission further evaluated the adopted rulemaking and performed an assessment of whether this adopted rulemaking constitutes a "taking" under Texas Government Code, Chapter 2007. Promulgation and enforcement of this adopted rulemaking would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations do not affect a landowner's rights in private real property because this rulemaking would not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations.

In addition, because the subject adopted regulations do not provide more stringent requirements, they do not burden, restrict, or limit an owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, this adopted rulemaking do not constitute a taking under Texas Government Code, Chapter 2007. For these reasons, Texas Government Code, Chapter 2007 does not apply to this adopted rulemaking.

Consistency with the Coastal Management Program

The commission reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Advisory Committee and determined that the rulemaking is administrative in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.

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

Effect on Sites Subject to the Federal Operating Permits Program

This adopted rulemaking does not impact facilities with air emissions that have applicable (federal or state) requirements with the Federal Operating Permit (30 TAC Chapter 122).

Public Comment

The commission offered a public hearing on August 18, 2016, but the public hearing was not formally opened for comment due to the lack of public attendance. The comment period closed on August 22, 2016. The commission received no comments on this rulemaking during the public comment period.

SUBCHAPTER D. OXYGEN REQUIREMENTS FOR GASOLINE

30 TAC §114.100

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel as described in the State Implementation Plan is not required prior to February 1, 2005.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606416

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2613


SUBCHAPTER F. VEHICLE RETIREMENT AND MOBILE EMISSION REDUCTION CREDITS

DIVISION 2. VEHICLE SCRAPPAGE PROGRAM

30 TAC §§114.211 - 114.217, 114.219

Statutory Authority

The repealed sections are adopted under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The repeal is also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel as described in the State Implementation Plan is not required prior to February 1, 2005.

The adopted repealed sections implement THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606417

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2613


SUBCHAPTER H. LOW EMISSION FUELS

DIVISION 1. GASOLINE VOLATILITY

30 TAC §114.305

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.202, concerning Vehicle Emissions Inspection and Maintenance Program, which authorizes the commission to establish vehicle fuel content standards after January 1, 2004, as long as distribution of low emission diesel as described in the State Implementation Plan is not required prior to February 1, 2005.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, and 382.202.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606418

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2613


CHAPTER 210. USE OF RECLAIMED WATER

SUBCHAPTER F. USE OF GRAYWATER AND ALTERNATIVE ONSITE WATER

30 TAC §§210.81 - 210.85

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§210.81 - 210.85.

Amended §§210.82 - 210.85 are adopted with changes to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5366) and will be republished. The amendment to §210.81 is adopted without change and will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

House Bill 1902 (HB 1902 or bill), 84th Texas Legislature (2015), amended Texas Health and Safety Code (THSC), Chapters 341 and 366, and Texas Water Code, Chapter 26, in relation to the use of graywater and alternative onsite water. The bill requires TCEQ to develop standards to allow the reuse of graywater for toilet and urinal flushing.

Additionally, the bill creates a new regulatory classification for "alternative onsite water" which the bill defines as "rainwater, air-conditioning condensate, foundation drain water, storm water, cooling tower blowdown, swimming pool backwash and drain water, reverse osmosis reject water, or any other source of water considered appropriate by the commission." The bill directs TCEQ to develop similar standards for the reuse of this new source of water similar to graywater.

The bill provides authority to TCEQ to adopt and implement rules for the inspection and annual testing of graywater and alternative onsite water systems.

The bill allows an adjustment in the drainfield size of an on-site sewage facility (OSSF) if used in conjunction with a graywater reuse system.

Lastly, the bill requires TCEQ to develop a regulatory guidance manual to explain the graywater and alternative onsite water regulations.

The bill requires amendments to Chapter 210, Use of Reclaimed Water, and 30 TAC Chapter 285, On-Site Sewage Facilities. The adopted rules allow for a reduction in the OSSF drainfield size if the OSSF is used in conjunction with a graywater reuse system, move all graywater reuse to Chapter 210, authorize toilet and urinal flushing as an additional reuse of graywater, authorize the reuse of alternative onsite water, establish uses of and treatment standards for alternative onsite water similar to graywater, incorporate nationally recognized treatment standards for graywater and alternative onsite water when used for toilet and urinal flushing, and revise bacteria limits from fecal coliform to Escherichia coli (E. coli).

HB 1902 retains the existing prohibition on the commission requiring a permit for the residential use of less than 400 gallons per day of graywater and adds alternative onsite water to the permit prohibition.

Because TCEQ does not issue permits for graywater and alternative onsite water reuse systems, the adopted rules do not include an inspection or testing program for these systems.

A regulatory guidance manual to explain the graywater and alternative onsite water regulations will be developed after adoption of this rulemaking.

A corresponding rulemaking is published in this issue of the Texas Register concerning Chapter 285, Subchapter H, Disposal of Graywater.

Section by Section Discussion

The adopted amendment to Chapter 210, Subchapter F, changes the title from "Use of Graywater Systems" to "Use of Graywater and Alternative Onsite Water" to reflect the inclusion of alternative onsite water in the subchapter.

§210.81, Applicability

Adopted §210.81(a) includes alternative onsite water, is clarified by noting that the graywater and alternative onsite water must be generated and used onsite, and revises the term "domestic use" to "private residence." Adopted §210.81(b) is revised to improve clarity and readability. Adopted §210.81(c) specifically notes that the rule does not apply to the design, construction, or operation of an OSSF, as these facilities are regulated by Chapter 285.

Adopted §210.81(d) includes a savings clause that retains the previous version of the rules in effect for facilities that were installed under that version of the rule. Existing facilities that were installed under the previous rule are not required to make changes to their facility to comply with the adopted rule, except as noted in adopted §210.83(j).

Lastly, adopted §210.81(e) specifically notes that the subchapter does not authorize the diversion or impoundment of state water. The diversion or impoundment of state water must be authorized under 30 TAC Chapter 297, Water Rights, Substantive. Alternative onsite water includes stormwater which must be impounded to collect and reuse under the adopted rule. A water right permit may be required to impound the stormwater.

§210.82, Definitions and General Requirements

The adopted amendment to §210.82 changes the title from "General Requirements" to "Definitions and General Requirements" to include definitions in the title.

The adopted rule adds definitions to §210.82(a) for "Alternative onsite water," "Alternative water reuse system," "Combined reuse system," and "Graywater reuse system."

The definition of "Alternative onsite water" in §210.82(a)(1) includes the same sources of water that are in the definition provided in THSC, §341.039(e), except cooling tower blowdown. The adopted rule has specific limitations on two sources of water that were included in THSC, §341.039(e): cooling tower blowdown and reverse osmosis reject water. The definition of "Alternative onsite water" specifically excludes cooling tower blowdown for the purposes of this subchapter, as that source of water must be reused in accordance with the requirements of Chapter 210, Subchapter E. Additionally, the definition of "Alternative onsite water" excludes reverse osmosis reject water generated at industrial facilities, commercial facilities, and institutions, as that source of water generated at those facilities must be reused in accordance with the requirements of Chapter 210, Subchapter E. Reverse osmosis reject water generated at private residences and agriculture facilities may be reused in accordance with the requirements of the adopted rule.

The definitions for "Alternative water reuse system," "Combined reuse system," and "Graywater reuse system," in §210.82(a)(2), (3), and (5) respectively, are necessary because the requirements, especially as they relate to design and functionality of the system when it nears maximum capacity, are different depending on the source of water routed to each system. The differences are discussed later in this preamble.

Adopted §210.82(b) establishes requirements for alternative water reuse systems used at a private residence, industrial facility, commercial facility, institution, or agriculture facility. Adopted §210.82(b)(1) establishes examples of beneficial reuses of water from alternative water reuse systems. Providing examples rather than specified uses ensures that the rule allows other uses that the commission may not consider during this rulemaking. The adopted rule also allows for the reuse of an unlimited volume of water from an alternative water reuse system.

Adopted §210.82(b)(2) reiterates that reverse osmosis reject water generated at an industrial facility, commercial facility, or institution is not allowed to be stored or used in an alternative water reuse system. If an industrial facility, commercial facility, or institution wants to reuse reverse osmosis reject water or a combination of reverse osmosis reject water and other sources of alternative onsite water, it must comply with the requirements of Chapter 210, Subchapter E.

Adopted §210.82(b)(3) allows for the reuse of water from an alternative water reuse system without an authorization from the commission. Property owners are responsible for compliance with the requirements of the adopted rule.

Adopted §210.82(b)(4) - (6) limits the application rate, allows spray irrigation of water from an alternative water reuse system under certain conditions, and includes a requirement that the system not create a nuisance, threaten human health, or damage the quality of surface water or groundwater. These requirements comply with THSC, §341.039(b) and (c)(6) - (8).

Adopted §210.82(b)(7) prohibits the reuse of swimming pool backwash and drain water within five days of adding chemicals for shock or acid treatment. This five-day waiting period allows for the chemicals to volatilize to the air prior to reuse.

Adopted §210.82(b)(8) requires water from an alternative water reuse system that is used for toilet or urinal flushing to meet E. coli limits, total suspended solids limits, and requires color specific pipes for distribution. The E. coli and total suspended solids limits are consistent with the National Science Foundation International/American National Standards Institute (NSF/ANSI) Standard 350-2014: On-site Residential and Commercial Water Reuse Treatment Systems. The colored pipe complies with plumbing codes and 30 TAC Chapter 217, Subchapter M. An alternative water reuse system that stores rainwater only and the rainwater meets the potable requirements in 30 TAC §290.44 does not require the purple pipe.

Adopted §210.82(b)(9) prohibits alternative water reuse systems from having a connection to an organized wastewater collection system or OSSF. Wastewater collection systems and their associated wastewater treatment plants are not designed for inflow from alternative onsite water. The adopted rule allows for alternative water reuse systems to overflow onto the ground when the capacity of the system is exceeded; however, the authorized overflow must be induced by rainfall conditions. Failure to use the stored water in a timely manner is not an authorized overflow.

Adopted §210.82(b)(10) notes that an alternative water reuse system may be subject to backflow prevention requirements in §290.44 to protect the public water supply from cross-contamination. It is the responsibility of the property owner to determine if the system is subject to §290.44 and to comply with the applicable requirements of that rule.

Adopted §210.82(c) has general requirements for graywater reuse systems and combined reuse systems used at a private residence, industrial facility, commercial facility, institution, or agriculture facility. These requirements are in addition to the requirements in §§210.83 - 210.85. Adopted §210.82(c)(1) requires graywater reuse systems and combined reuse systems to comply with the requirements of this subchapter and the local permitting authority.

Adopted §210.82(c)(2) and (3) limit the application rate of water from a graywater reuse system or a combined reuse system and includes a requirement that the system not create a nuisance, threaten human health, or damage the quality of surface water or groundwater. These requirements comply with THSC, §341.039(b) and (c)(6) and (7).

Adopted §210.82(c)(4) notes that a graywater reuse system or combined reuse system may be subject to backflow prevention requirements in §290.44 to protect the public water supply from cross-contamination. It is the responsibility of the property owner to determine if the system is subject to §290.44 and to comply with the applicable requirements of that rule.

§210.83, Residential Use of Graywater and Alternative Onsite Water

The adopted amendment to §210.83 changes the title from "Criteria for the Domestic Use of Graywater" to "Residential Use of Graywater and Alternative Onsite Water" to be more concise, to include alternative onsite water, and to use terminology common to the public.

Adopted §210.83(a) establishes requirements for graywater reuse systems and combined reuse systems used at a private residence. An authorization from the commission is not required for the residential use of graywater and alternative onsite water when the total combined average is less than 400 gallons per day. The residential use of graywater and alternative onsite water when the total combined average is greater than or equal to 400 gallons per day does not require an authorization from the commission, unless directed by the executive director. Adopted §210.83(b) and (c) notes that the graywater and alternative onsite water must be generated and used onsite. Adopted §210.83(c) retains the list of approved uses of graywater from the former rule while adding toilet and urinal flushing and applying these uses to alternative onsite water.

Adopted §210.83(d) prohibits the overflow of graywater reuse systems and combined reuse systems onto the ground under any circumstances. Instead, in §210.83(d)(1) the rule requires that graywater reuse systems be designed so that the storage tank overflows into the wastewater collection system or OSSF unless prohibited by Chapter 285, Subchapter H. Adopted §210.83(d)(2) requires that combined reuse systems be designed so that the graywater can be diverted into the wastewater collection system or OSSF, unless prohibited by Chapter 285, Subchapter H. The graywater must be diverted prior to entering the storage tank and during periods of non-use of the combined reuse system or when the storage tank reaches 80% capacity. Adopted §210.83(d)(3) requires combined reuse systems that store stormwater, rainwater, and/or foundation drain water to have an automatic shutoff system to stop the inflow of these sources of water when the system reaches 80% capacity. The 20% reserved volume in the tank is to accommodate inflows of other sources of alternative onsite water.

Adopted §210.83(d)(1) and (2) require either a single air gap or two backflow preventers between the reuse system and the wastewater system.

Adopted §210.83(e) and (f) continues the existing requirement for graywater to be stored in tanks and retains the existing tank and piping requirements, while applying these requirements to water from a combine reuse system.

Adopted §210.83(g) allows water from a graywater or combine reuse system to be applied via spray irrigation if certain conditions are met, including limiting exposure during irrigation events and meeting E. coli limits.

Adopted §210.83(h) establishes minimum standards for graywater and alternative onsite water. Monitoring and recordkeeping are not required; however, property owners may refer to the regulatory guidance document required by THSC, §341.039 for assistance in complying with the standards. Adopted §210.83(h)(1) requires graywater and alternative onsite water to be treated to remove debris by requiring a 50-mesh screen on the storage tank inflow. Removing this debris prevents clogs in the distribution pipes and reduces organic matter in the storage tank that can cause nuisance odors and vector attraction. Adopted §210.83(h)(2) prohibits swimming pool backwash and drain water from being reused within five days of adding chemicals for shock or acid treatment. This five-day waiting period allows for the chemicals to volatilize to the air prior to reuse. Lastly, adopted §210.83(h)(3) requires water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing to meet E. coli limits, total suspended solids limits, and requires color specific pipes for distribution. The E. coli and total suspended solids limits in adopted §210.83(h)(3)(A) and (B) are consistent with NSF/ANSI Standard 350-2014 for single-family residential dwellings (Class R). The colored pipe in adopted §210.83(h)(3)(C) complies with plumbing codes and Chapter 217, Subchapter M.

Adopted §210.83(i) adds alternative onsite water to the existing recommendations to residential builders and clarifies that residential builders should consider end use requirements and maintaining sufficient blackwater waste flow.

Adopted §210.83(j) clarifies the existing requirements for laundry graywater by replacing the phrase "effective date of this rule" with the exact date that former subsection (e) was effective, in §210.83(j)(1) replacing "must not create a public health nuisance" with "must not create a nuisance or threaten human health," and correcting grammatical errors in §210.83(j)(6). Additionally, adopted §210.83(j)(8) is revised to improve readability and adds a date for alterations. The date is the effective date of former subsection (f).

§210.84, Industrial, Commercial, or Institutional Use of Graywater and Alternative Onsite Water

The adopted amendment to §210.84 changes the title from "Criteria for Use of Graywater for Industrial, Commercial, or Institutional Purposes" to "Industrial, Commercial, or Institutional Use of Graywater and Alternative Onsite Water" to be more concise and to include alternative onsite water.

Adopted §210.84(a) reiterates that alternative onsite water generated at an industrial facility, commercial facility, or institution does not include reverse osmosis reject water, as this source of water is regulated by Chapter 210, Subchapter E.

Adopted §210.84(b) revises language regarding authorization from the commission for the use of graywater and alternative onsite water at an industrial facility, commercial facility, or institution and moves former §210.84(c)(1)(B) to adopted §210.84(b). These amendments improve readability.

Adopted §210.84(c) clarifies that the graywater and alternative onsite water must be generated and used onsite.

Adopted §210.84(d) prohibits the overflow of graywater reuse systems and combined reuse systems onto the ground under any circumstances. Instead, adopted §210.84(d)(1) requires that graywater reuse systems be designed and constructed so that the graywater can be diverted to a wastewater collection system, OSSF, authorized wastewater outfall, or authorized disposal area. The graywater must be diverted when the graywater reuse system is not being used or when the system reaches maximum capacity.

Adopted §210.84(d)(2) requires that combined reuse systems be designed and constructed so that the graywater can be diverted to a wastewater collection system, OSSF, authorized wastewater outfall, or authorized disposal area prior to entering the combined reuse system. The graywater must be diverted when the combined reuse system is not being used or when the system reaches 80% capacity. Additionally, adopted §210.84(d)(3) notes that combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of these sources of water when the system reaches 80% capacity. The 20% reserved volume is to accommodate inflows of other sources of alternative onsite water.

Adopted §210.84(d)(1) and (2) also require either a single air gap or two backflow preventers between the reuse system and the wastewater system.

Adopted §210.84(e) retains the list of approved uses of graywater from the former rule while applying these uses to alternative onsite water. Adopted §210.84(e)(1) - (5) revises the bacteria limits from fecal coliform to E. coli; however, the limit values for all uses were not revised from the former rule, except toilet or urinal flushing in §210.84(e)(4). Additionally, in §210.84(e)(2) the applicability of bacteria limits is revised based on whether there is public access or restricted public access to the application area rather than if there is public contact with the water or the public is present at the time of irrigation. Adopted §210.84(e)(4) revises the bacteria limits for toilet or urinal flushing from fecal coliform to E. coli, revises the limit values, and adds a limit for total suspended solids. The E. coli and total suspended solids limit values for toilet or urinal flushing are consistent with NSF/ANSI Standard 350-2014 for commercial facilities (Class C). Adopted §210.84(e)(4)(C) revises the color of the warning on exposed pipes carrying graywater and/or alternative onsite water to be consistent with Chapter 217, Subchapter M.

Adopted §210.84(f) was revised to improve readability.

§210.85, Agricultural Use of Graywater and Alternative Onsite Water

The adopted amendment to §210.85 changes the title from "Criteria for Use of Graywater for Irrigation and for Other Agricultural Purposes" to "Agricultural Use of Graywater and Alternative Onsite Water" to be more concise and to include alternative onsite water.

Adopted §210.85(a) revises language regarding authorization from the commission for agricultural use of graywater and moves former §210.85(c)(1)(B) to adopted §210.85(a). The amendment adds alternative onsite water and improves readability. Adopted §210.85(b) clarifies that the graywater and alternative onsite water must be generated and used onsite.

Adopted §210.85(c) prohibits the overflow of graywater reuse systems and combined reuse systems onto the ground under any circumstances. Instead, adopted §210.85(c)(1) requires that graywater reuse systems be designed and constructed so that the graywater can be diverted to a wastewater collection system or an OSSF, unless prohibited by Chapter 285. For graywater reuse systems, the graywater must be diverted when the graywater reuse system is not being used or when the system reaches maximum capacity.

Adopted §210.85(c)(2) requires that combined reuse systems be designed and constructed so that the graywater can be diverted to a wastewater collection system or an OSSF, unless prohibited by Chapter 285. The graywater must be diverted prior to entering the combined reuse system. The graywater must be diverted when the combined reuse system is not being used or when the system reaches 80% capacity. Additionally, adopted §210.85(c)(3) requires combined reuse systems that store stormwater, rainwater, and/or foundation drain water to have an automatic shutoff system to stop the inflow of these sources of water when the system reaches 80% capacity. The 20% reserved volume is to accommodate inflows of other sources of alternative onsite water.

Adopted §210.85(c)(1) and (2) require either a single air gap or two backflow preventers between the reuse system and the wastewater system.

Adopted §210.85(d) retains the list of approved uses of graywater from the former rule while adding toilet and urinal flushing and applying these uses to alternative onsite water. Adopted §210.85(d)(1) - (4) and (6) revises the bacteria limits from fecal coliform to E. coli; however, the limit values for all uses were not revised from the former rule. Additionally, adopted §210.85(d)(2) notes the applicability of bacteria limits is revised based on whether there is public access or restricted public access to the application area rather than if there is public contact with the water or the public is present at the time of irrigation. Adopted §210.85(d)(4) clarifies that bacteria limits do not apply to the irrigation of fields that are not used for edible crops or grazing milking animals.

Adopted §210.85(d)(5) adds toilet or urinal flushing as an additional use of graywater and alternative onsite water at agricultural facilities. Adopted §210.85(d)(5)(A) - (C) requires water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing to meet E. coli limits, total suspended solids limits, and requires color specific pipes for distribution. The E. coli and total suspended solids limits are consistent with NSF/ANSI Standard 350-2014 for commercial facilities (Class C). The colored pipe complies with plumbing codes and Chapter 217, Subchapter M.

Adopted §210.85(e) was revised to improve readability.

Final Regulatory Impact Analysis Determination

TCEQ reviewed the adopted rulemaking in consideration of the regulatory analysis of major environmental rules required by Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to Texas Government Code, §2001.0225(a) because it does not meet the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3). The following is a summary of that review.

Texas Government Code, §2001.0225 applies to a "major environmental rule" adopted by a state agency, the result of which is to exceed standards set by federal law, exceed express requirements of state law, exceed requirements of delegation agreements between the state and the federal government to implement a state and federal program, or adopt a rule solely under the general powers of the agency instead of under a specific state law. A "major environmental rule" is a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

As the Author's/Sponsor's Statement of Intent makes clear, the 84th Texas Legislature, 2015, enacted HB 1902 with the aim of lessening Texas' demand for freshwater resources by encouraging and expanding the allowable uses of graywater and other recycled water. By updating decades-old statutory provisions governing graywater disposal and reuse with new technologies and systems that expand the possibilities for safe reuse of graywater on commercial, industrial, and domestic properties, the statutory changes from HB 1902 would ideally result in less demand for freshwater resources for water needs that do not require freshwater standards. More specifically, the Statement of Intent articulates that "by clarifying the existing {Texas Health and Safety Code (THSC)} standards and expanding the scope and uses of graywater and alternative onsite water {and ensuring that the Texas Water Code conforms to these changes}, C.S.H.B. 1902 could act as another part of the solution to Texas' water challenges."

To expand the possibilities for safe reuse of graywater, HB 1902 brings current law and regulations up to date by directing TCEQ to, by rule, expand the sources of usable non-potable water to include "alternative onsite water" by defining and including it in relevant rule language governing graywater. HB 1902 furthers the use of graywater and alternative onsite water by allowing the indoor use of graywater for toilet and urinal flushing. Specifically, HB 1902 amends the THSC to specify that the minimum standards adopted and implemented by TCEQ rule for the use and reuse of graywater are for the indoor and outdoor use and reuse of treated graywater and alternative onsite water. HB 1902 promotes the use of graywater and alternative onsite water as viable, sustainable resources as a way to avoid or prevent a lack of water for drinking and other essential purposes, which would be a human health and safety crisis.

Therefore, the specific intent of the adopted rulemaking is to lessen demand for freshwater resources for water needs that do not require freshwater standards by adopting and implementing minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water for irrigation, certain domestic uses, and agricultural, commercial, and industrial uses. All of which help to prevent a human health and safety crisis due to a lack of water for drinking and other essential purposes. By promoting the use and reuse of treated graywater and alternative onsite water, which helps to avoid a lack of water for drinking and other essential purposes, the adopted rules protect human health and safety, as well as water quality; however, the adopted rules will not adversely affect the economy, a sector of the economy, productivity, competition, or jobs within the state or a sector of the state. Accordingly, the commission concludes that the adopted rulemaking does not meet the definition of a "major environmental rule."

Even if this rulemaking was a "major environmental rule," this rulemaking meets none of the criteria in Texas Government Code, §2001.0225, for the requirement to prepare a full regulatory impact analysis. First, this rulemaking is not governed by federal law. Second, it does not exceed state law but rather creates new minimum standards and corresponding processes under state law to ensure efficient regulatory oversight, while comprehensively protecting the state's natural resources. Third, it does not come under a delegation agreement or contract with a federal program; and finally, it is not being adopted under the TCEQ's general rulemaking authority. This rulemaking is being adopted under a specific piece of state legislation from HB 1902, Texas Legislature, 2015, which amends the THSC to direct TCEQ to adopt and implement minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water, while not threatening human health.

Therefore, the commission does not adopt the rule solely under the commission's general powers. The commission invites public comment on the Draft Regulatory Impact Analysis Determination.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the regulatory impact analysis determination.

Takings Impact Assessment

TCEQ evaluated the adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007. The following is a summary of that analysis.

The specific purpose of the adopted rulemaking is to lessen demand for freshwater resources for water needs that do not require freshwater standards by adopting and implementing minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water for irrigation, certain domestic uses, and agricultural, commercial, and industrial uses. All of which help to prevent a human health and safety crisis due to a lack of water for drinking and other essential purposes. The adopted rulemaking substantially advances this stated purpose by adopting language in amended Chapter 210 that expands the sources of water that can be reused by defining "alternative onsite water" and expands the allowable use and reuse of treated graywater and alternative onsite water to include toilet and urinal flushing.

Promulgation and enforcement of the adopted rules is not a statutory or constitutional taking of private real property because, as the commission's analysis indicates, Texas Government Code, Chapter 2007 does not apply to these adopted rules because these rules do not impact private real property. In HB 1902, the legislature expressed that as Texans strive to more efficiently use increasingly scarce water resources, clarifying the existing standards and expanding the scope and uses of graywater and alternative onsite water, coupled with the new technologies and systems that have been created, expanding the possibilities for safe reuse of graywater on commercial, industrial, and domestic properties, graywater reuse can contribute to meeting state water needs and helping to prevent a lack of water for drinking and other essential purposes. The public has access to vast quantities of graywater as the public themselves are the producers of their own graywater. Specifically, the adopted rulemaking does not apply to or affect any landowner's rights in any private real property because it does not burden (constitutionally), restrict, or limit any landowner's right to real property or reduce any property's value by 25% or more beyond that which would otherwise exist in the absence of the regulations. For graywater, there are no real property rights that have been granted for use of an individual's own graywater. These actions will not affect or burden private real property rights because the graywater and alternative onsite water are generated onsite and used onsite by the same individual.

Even if there were real property rights issued for graywater produced by the public, the commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules because this is an action that is taken in response to a real and substantial threat to public health and safety; is designed to significantly advance the health and safety purpose; and does not impose a greater burden than is necessary to achieve the health and safety purpose. Thus, this action is exempt under Texas Government Code, §2007.003(b)(13). Lack of water for drinking and other essential purposes would be a health and safety crisis. This rulemaking could help to lessen the demand for freshwater resources for water needs that do not require freshwater standards, resulting in more drinking water and water for essential purposes.

Consistency with the Coastal Management Program

The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program (CMP).

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.

Public Comment

The commission held a public hearing on August 16, 2016. The comment period closed on August 22, 2016. The commission received comments prior to the public comment period and related communications during the public comment period from Texas State Representative Donna Howard (Representative Howard) and Texas State Representative Paul D. Workman (Representative Workman). The commission received comments during the public comment period from the Biggerstaff Homes, Inc., Sunbelt Construction, LLC, Lipan Development, LLC (Biggerstaff); City of Austin (COA); City of Irving (COI); Harris County, Texas (Harris County); League of Women Voters of Texas (LWV); Texas Association of Builders (TAB); Texas On-Site Wastewater Association (TOWA); and Water ReNu, LLC (Water ReNu).

Ten commenters were in support of the rulemaking, no commenters were against the rulemaking, and the commenters suggested changes.

Response to Comments

General Comments

Comment

LWV supported the timely development of the rules, the inclusion of other onsite sources of water, and provision for a manual explaining the rules to the public.

Response

The commission acknowledges this comment.

Comment

Biggerstaff and Water ReNu recommended that graywater reuse systems should be allowed to contain reverse osmosis reject water and air conditioning condensate and that these sources of water be allowed to be routed to the wastewater collection system or OSSF.

Response

The commission disagrees with this comment. The rules are separated into three types of systems: alternative water reuse systems, graywater reuse systems, and combined reuse systems. A reuse system that contains graywater, reverse osmosis reject water, and air conditioning condensate is a combined reuse system. Combined reuse systems must be designed to divert graywater to the wastewater system and to have an automatic shutoff to stop inflows of stormwater, rainwater, and foundation drain water when the system reaches 80% capacity. The 20% reserved volume is to accommodate inflows of air-conditioner condensate and reverse osmosis reject water. No changes were made in response to this comment.

Comment

COI commented that reverse osmosis reject water should not be excluded from the rule.

Response

The commission partially agrees with this comment. Adopted §210.82(a)(1) states that reverse osmosis reject water generated at private residences and agricultural facilities can be used in accordance with this subchapter. However, reverse osmosis reject water from industrial facilities, commercial facilities, and institutions is authorized for reuse under Chapter 210, Subchapter E. No changes were made in response to this comment.

Comment

TOWA commented that toilet systems should not be allowed to drain into a graywater system unless solid waste is separated from liquid waste and the liquid waste meets bacteria and total suspended solids limits consistent with the National Science Foundation Standard 350. Harris County recommends that the rules allow reuse of blackwater for non-potable uses including irrigation and toilet and urinal flushing water.

Response

THSC, §341.039 and the revisions in HB 1902 do not allow reuse of toilet water, also known as blackwater. Blackwater may be reused in accordance with Chapter 210, Subchapters A - D.

Comment

Representatives Howard and Workman recommended that the rules not require graywater systems to overflow to OSSF systems. They recommend that designated agents retain authority to determine whether to connect graywater and OSSF systems.

Response

The commission partially agrees with this comment. OSSF systems that have a reduced drainfield are not designed to accommodate the inflow of graywater. However, if the OSSF does not have a reduced drainfield, the OSSF is designed to accommodate the inflow of graywater. A designated agent should not be authorized to prohibit graywater from entering an OSSF that is designed to accommodate the graywater. No changes were made in response to this comment.

Comment

TOWA commented that the rules should allow individuals that are already trained in wastewater recycling and OSSFs to implement the requirements of the subchapter.

Response

The adopted rules allow flexibility for users to determine the best way to comply with the requirements of this subchapter. The adopted rules allow anyone, including individuals, to install and operate a reuse system. No changes were made in response to this comment.

Comment

TOWA commented that the rules should allow individuals that are already trained in wastewater recycling and OSSFs to conduct the testing and reporting of reuse systems.

Response

The commission partially agrees with this comment. The adopted rules allow anyone, including individuals, to conduct the required monitoring of effluent from a reuse system. However, the rules do not require a reuse system to be tested nor monitoring results to be reported to the agency. The commission is not implementing the reuse system inspection and testing program identified in THSC, §341.039(b-1), as that provision of the statute is optional. No changes were made in response to this comment.

Comment

Water ReNu commented that the rules include requirements that add cost to graywater reuse systems. Increasing the cost of the systems will result in fewer builders incorporating reuse systems.

Response

The commission is directed by THSC, §341.039(b) to adopt standards to prevent nuisances, protect human health, and prevent damage to the quality of surface water and groundwater. The commission recognizes that the adopted rule must balance the protective standards with the cost-effectiveness of the requirements. For this reason, the rules do not include specific design criteria, but instead allow design flexibility to meet the standards. No changes were made in response to this comment.

Comment

Water ReNu commented that the rules should allow for off-the-shelf systems to be used which could increase graywater reuse.

Response

The commission agrees with this comment. The adopted rules do not include specific design criteria, but instead allow design flexibility. Commercially available off-the-shelf systems may be used if they meet the requirements in the rule. No changes were made in response to this comment.

Comment

Water ReNu requested clarification if the use of a single electronic controller for separate systems is allowed.

Response

The adopted rules do not include specific design criteria, but instead allows flexibility in designing reuse systems. This flexibility allows the use of a single controller for multiple systems. No changes were made in response to this comment.

Comment

Water ReNu requested clarification on the following scenario: if rainwater is stored in a rainwater only alternative water reuse system and also sent to a combined reuse system, are the two distinct irrigation zones considered as a single combined reuse system or an alternative onsite reuse system and a combined reuse system.

Response

The type of reuse system depends on the type of water being stored and distributed. A reuse system that stores and distributes graywater and one or more sources of alternative onsite water is a combined reuse system. A reuse system that stores and distributes only alternative onsite water is an alternative water reuse system. It is possible to have more than one reuse system on a site. In the scenario described by the commenter, the system that stores and distributes the rainwater only would be an alternative water reuse system and the system that stores and distributes rainwater commingled with graywater would be a combined reuse system. The distribution system cannot be shared by different reuse systems. No changes were made in response to this comment.

Specific Comments

Comment

Water ReNu recommended revising §210.82(a)(1) from "industrial facilities" and "commercial facilities" to "industrial processes" and "commercial processes."

Response

The commission disagrees with this comment. This provision of the rule is clarifying that reverse osmosis reject water generated at facilities, other than residential and agricultural, are regulated under Chapter 210, Subchapter E. No change was made in response to this comment.

Comment

Harris County commented that §210.82(b)(1) and §210.83(c)(2) should be revised to clarify if gardening includes edible items or just ornamental.

Response

The commission disagrees with this comment. Section 210.82(b)(1) and §210.83(c) allow reuse for landscape irrigation and gardening. Landscape is typically non-edible vegetation and gardening is edible vegetation. No change was made in response to this comment.

Comment

Harris County commented that the requirement in proposed §210.82(b)(6) and (c)(4) that reuse does not "damage the quality of surface water or groundwater" is vague and potentially requires a higher burden of proof. The commenter recommended revising "damage" to "impact."

Response

The commission partially agrees with this comment. Although "damage" may require a higher burden of proof, the adopted rule language matches THSC, §341.039(b). No change was made in response to this comment.

Comment

Harris County commented that §210.82(b)(9) has a grammatical error and should be revised to read: "…to an organized wastewater collection system or an onsite sewage facility (OSSF)."

Response

The commission agrees with this comment and revised §210.82(b)(9) as recommended.

Comment

Water ReNu recommended revising §210.82(c) by deleting "used at a private residence, industrial facility, commercial facility, institution, or agriculture facility" noting that the phrase is unnecessary since it includes all facility types regulated under the rule.

Response

The commission agrees with this comment and revised §210.82(c) as recommended.

Comment

Biggerstaff and Water ReNu recommended revising §210.82(c)(2) to allow the property owner or the installing contractor to provide notice to the relevant authorities. TAB commented that the notification required by §210.82(c)(2) is an unnecessary burden on individual property owners, and home builders may not be an authority on the graywater system.

Response

This rulemaking implements HB 1902. According to the statement of intent for HB 1902, the intent was to encourage and expand the allowable uses of graywater and other recycled water. The notification requirement in §210.82(c)(2) resulted in unexpected complexities for property owners that want to reuse graywater and alternative onsite water. These complexities may dis-incentivize reuse, which conflicts with the intent of HB 1902. In response to this comment, the commission removed the notification requirement so that the adopted rule meets the intent of HB 1902, and re-numbered subsequent paragraphs.

Comment

Water ReNu recommended that §210.82(c)(6) be revised to allow air-conditioner condensate and reverse osmosis reject water in a combined reuse system to overflow to the wastewater system.

Response

Sections 210.83(d)(2) and (3), 210.84(d)(2) and (3), and 210.85(c)(2) and (3) require combined reuse systems to be designed to divert graywater to the wastewater system and to have an automatic shutoff to stop inflows of stormwater, rainwater, and foundation drain water when the system reaches 80% capacity. The 20% reserved volume is to accommodate inflows of air-conditioner condensate and reverse osmosis reject water. Since the design requirements for combined reuse systems are contained in §§210.83 - 210.85, the commission removed §210.82(c)(6).

Comment

Harris County commented that §210.83(a) should be revised to read: "An authorization from the commission is not required for the residential use of graywater and alternative onsite water from a graywater reuse system, an alternative reuse system, or a combined reuse system when the total combined average…"

Response

Section 210.82(b) provides the requirements for alternative water reuse systems for all facility types. Section 210.82(b)(3) allows reuse of water from an alternative water reuse system without authorization from the commission and §210.82(b)(1) allows reuse of the water in any volume. The recommended change would conflict with the requirements of §210.82(b). No change was made in response to this comment.

Comment

Water ReNu recommended that §210.83(a) be clarified if the 400 gallons per day limit applies in total across the entire property or as individual limits for each reuse system.

Response

As proposed, an authorization is not required for reuse of less than 400 gallons per day. The 400 gallons per day limit applies to the total volume from graywater and combined reuse systems on the entire property. Most residences generate less than 400 gallons per day of graywater, so it would be rare for a residence to require an authorization for graywater reuse. However, sources of alternative onsite water can exceed 400 gallons per day. Most residences that install a combined reuse system would exceed the volume limitation and have to obtain an authorization.

According to the statement of intent for HB 1902, the intent was to encourage and expand the allowable uses of graywater and other recycled water. Requiring an authorization for most residences that install a combined reuse system may dis-incentivize reuse, which conflicts with the intent of HB 1902.

THSC, §341.039 states that the commission may not require a permit for reuse of less than 400 gallons per day. The statute is silent to whether or not a permit is required when 400 gallons per day or more is reused. This provides the commission the discretion to determine if a permit is required for reuse of greater than 400 gallons per day. In response to this comment, the commission added a statement that authorization is not required for reuse of 400 gallons per day or more, unless directed by the executive director.

Comment

Biggerstaff and Water ReNu questioned whether there is sufficient cost benefit to requiring two backflow preventers for connecting graywater overflow to wastewater collection systems or OSSFs in §§210.83(d)(1) and (2), 210.84(d)(1) and (2), and 210.85(c)(1) and (2).

Response

The commission partially agrees with this comment. Installing backflow valves or preventers between the wastewater system and the reuse system prevents and protects against blackwater back-up into the reuse system and subsequently the building. The requirement for two valves or preventers ensures protection in the event that one of the valves or preventers malfunctions. However, the commission recognizes that an air gap is an effective method of preventing backflow. In response to this comment, the commission revised §§210.83(d)(1) and (2), 210.84(d)(1) and (2), and 210.85(c)(1) and (2) to allow for either one air gap or two backflow valves or preventers.

Comment

Harris County commented that §210.83(d)(2) and §210.85(c)(2) be revised to read: "Combined reuse systems must be designed and constructed so that 100% of the graywater, but not the alternative onsite water, can be diverted to an organized wastewater collection system or an OSSF…"

Response

The commission agrees with this comment, but the recommended change is unnecessary. Section 210.82(c)(6) requires that a combined reuse system be designed so that alternative onsite water is not allowed to enter the wastewater system. No changes were made in response to this comment.

Comment

Water ReNu recommended that §210.83(d)(2) and §210.84(d)(2) be revised to state "Graywater must be diverted or redirected…"

Response

The commission disagrees with this comment. Including "diverted or redirected" in the rule text is redundant. No change was made in response to this comment.

Comment

Water ReNu recommended that §210.83(d)(3) and §210.84(d)(3) be revised to require the automatic shutoff system to activate "if this inflow will enter the graywater tank, or disrupt or prevent processing of graywater."

Response

The commission disagrees with this comment. A combined reuse system, by definition, contains graywater and one or more sources of alternative onsite water. Section 210.83(d)(3) and §210.84(d)(3) are requirements for a combined reuse system which has inflows of graywater and stormwater, rainwater, and/or foundation drain water. A reuse system that only contains stormwater, rainwater, and/or foundation drain water is an alternative water reuse system, subject to the requirements in §210.82(b). No changes were made in response to this comment.

Comment

Water ReNu commented that the requirements for irrigation at private residences is different than industrial, commercial, and agriculture facilities. The commenter noted that whether a property is a commercial premise or private residence, the graywater/alternative onsite water should be treated to an acceptable standard for irrigation and preventing human contact. The commenter recommended allowing non-E. coli treatment standards for irrigation, regardless of the property type.

Response

The proposed rules prohibited spray irrigation at private residences, but not at industrial, commercial, and agriculture facilities. Instead, the proposed rules required industrial, commercial, and agriculture facilities to meet E. coli limits for irrigation, which could include spray irrigation. The commission agrees that spray irrigation should be allowed for private residences if treated to meet E. coli limits. THSC, §341.039(c) states, "The commission may not require a permit for the domestic use of less than 400 gallons of graywater or alternative onsite water each day if the water…is distributed by a surface or subsurface system that does not spray into the air." The statute is silent on whether or not a permit is required when graywater or alternative onsite water is reused by spray irrigation. This provides the commission the discretion to determine if a permit is required for reuse via spray irrigation.

The commission disagrees that E. coli limits should not apply to irrigation of graywater and alternative onsite water. These sources of water have E. coli in concentrations that can pose a risk to human health; therefore, it may be appropriate to treat the water to reduce these pathogens. In response to this comment, the commission revised §210.83(g) to allow reuse using a spray irrigation system only if: 1) the water meets E. coli limits to protect human health; 2) the water is applied at times when people and pets will not come into contact with the water; 3) the water is not applied during weather conditions that could result in discharges; 4) the water is applied at a rate to prevent ponding, puddling, or runoff; 5) the water cannot be sprayed or allowed to drift off the property; 6) the spray distribution system has suitable backflow prevention to protect the potable or raw water system; and 7) the system must be inspected and repaired as needed to prevent discharges. Section 210.82(b)(5) was similarly revised, with the exception of E. coli limits.

Comment

Biggerstaff recommended removing the requirement for a 50-mesh filter in §210.83(h)(1). Water ReNu recommended removing the requirement for a 50-mesh filter on graywater reuse systems but retaining it for alternative water reuse systems. TAB recommended adjusting the mesh scale to limit unnecessary flooding and damage to a home, as well as limit unnecessary complications to a homeowner.

Response

The commission disagrees with these comments. The 50-mesh screen filter is necessary to prevent the accumulation of organic solids into the storage tank and/or distribution lines. Accumulation of organic solids in the storage tank will reduce the storage capacity of the tanks and increase the rate at which the water will become septic. A system that is septic creates nuisance odors. Accumulation of organic solids in the distribution lines will clog the lines, making the system unusable.

The commission selected 50-mesh because this size will be effective in preventing organic solids from entering the tank. No changes were made in response to these comments.

Comment

Water ReNu recommended that §210.83(i)(1) be revised to read: "…from all allowable sources, taking into consideration end use requirements and maintaining sufficient blackwater waste flow…"

Response

The commission agrees with this comment and revised §210.83(i)(1) as recommended.

Comment

COA commented that §210.83(j) should be revised to prohibit laundry graywater disposal onto the drainfield of an OSSF.

Response

The commission agrees that laundry graywater should not be disposed of on an OSSF drainfield. However, the recommended change was not made because §210.83(j) applies to laundry graywater that has been disposed of onto the ground prior to January 6, 2005. The recommended change may require a property owner to alter their system by changing the location of the disposal area. Adopted §210.83(j)(8) prevents property owners from using a system that is altered after January 6, 2005. No change was made in response to this comment.

Comment

Harris County commented that TCEQ should explain what is meant by "significant" in proposed §210.83(j)(8) and how a regular consumer would distinguish between such products.

Response

Section 210.83(j)(8) was a recommendation rather than a regulatory requirement. As such, it is appropriate to include in the regulatory guidance document required by THSC, §341.039 rather than in the rule. In response to this comment, the commission removed proposed §210.83(j)(8) and renumbered the subsequent paragraph and will include this recommendation in the regulatory guidance document. This recommendation is intended to encourage homeowners to be aware of the ingredients in laundry detergents when choosing which product to purchase. Product ingredients are listed in order based on the amount of each ingredient, from greatest amount to least amount. A homeowner is encouraged to choose products either without these nutrients or with these nutrients listed lower in the ingredients list.

Comment

Water ReNu commented that E. coli limits for landscape irrigation and other uses are unnecessary and exceed the standards required by THSC, §341.039(b). The commenter recommended revising §210.84(e)(2) and (5) to replace the E. coli limits with water management techniques, such as limiting irrigation volume to that required for beneficial irrigation, site-based rainfall detection defining when additional makeup water should not be added and when irrigation should be suspended, minimum distances for subsurface irrigation, and diverting excess graywater, air-conditioner condensate, and reverse osmosis reject water to the wastewater system when sufficient water has already been irrigated.

Response

The commission disagrees with this comment. THSC, §341.039(b) requires the commission to adopt standards that assure that the use of graywater or alternative onsite water is not a nuisance and does not threaten human health or damage the quality of surface water and groundwater. The water management techniques recommended by the commenter will ensure that the graywater and alternative onsite water is beneficially reused rather than disposal, as required by the adopted rule. The recommended management techniques do not ensure protection of human health. No changes were made in response to this comment.

Comment

Water ReNu recommended that §210.84(a) be revised to allow small scale reverse osmosis producing less than 50 gallons per day from non-industrial or non-commercial processes to be used in accordance with this subchapter.

Response

The commission disagrees with this comment. Reverse osmosis reject water from industrial facilities, commercial facilities, and institutions is authorized for reuse under Chapter 210, Subchapter E. No changes were made in response to this comment.

Comment

Biggerstaff commented that §210.84(e)(2) should be revised so that multi-family developments and small commercial developments with graywater volumes similar to residential reuse should not be required to install treatment and sanitizing systems. TAB commented that the rules should not categorize multi-family buildings as commercial. The commenters recommended that treatment and categorization should be based on irrigation loading, irrigation area size, and method of irrigation.

Response

The commission disagrees with these comments. THSC, §341.039(b) requires the commission to adopt standards that protect human health. Categorizing multi-family buildings as commercial facilities is necessary to protect human health. At private residences, the owner will know that a reuse system is installed and the location of distribution areas. Having knowledge of the system and distribution areas allows the owner to avoid contact with the reuse water as a method of protecting human health. Occupants of multi-family buildings may or may not be owners and, therefore, may or may not be aware of a reuse system. Without the knowledge to avoid contact with the reuse water, protection of human health is achieved by meeting E. coli limits. No changes were made in response to these comments.

Comment

Harris County commented that §210.84(f) should be revised to require E. coli monitoring and recordkeeping for all systems that have E. coli standards. Harris County also commented that §210.84(f) incorrectly cites subsection (d)(2)(A) instead of subsection (e)(2)(A).

Response

The commission agrees with this comment and revised §210.84(f) to correct the citation and revised §210.84(f) and §210.85(e) to require monitoring and recordkeeping for all systems that are required to meet E. coli limits. Monitoring and recordkeeping are not required for residential reuse. Section 210.83(h) was revised for clarity.

Comment

COA commented that there is an inconsistent reference to OSSFs regulated under §285.81 within §210.85(c)(1) which regulates agricultural uses.

Response

The commission disagrees with this comment. Agricultural facilities can have single family residences that would qualify for a reduced OSSF effluent disposal system under Chapter 285, Subchapter H. No change was made in response to this comment.

Comment

Water ReNu requested clarification of §210.85(d)(4), noting that some Texas jurisdictions allow graywater reuse on citrus and nut trees without meeting E. coli limits. The commenter asked if the E. coli limits apply to all graywater or combined reuse systems regardless of property type and end use, specifically non-commercial applications where the produce is not sold as part of a commercial enterprise.

Response

Citrus and nut trees are edible crops. Water from a graywater reuse system or a combined reuse system that is used to irrigate these types of trees at an agricultural facility must meet the E. coli limits in §210.85(d)(2)(A). No changes were made in response to this comment.

Statutory Authority

The amended sections are adopted under Texas Water Code (TWC), §5.013 and §5.102, which establish the commission's general jurisdiction and provides general powers of the commission over other areas of responsibility as assigned to the commission under the TWC; TWC, §5.103 and §5.105, require the commission to adopt any rule or policy necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.120, requires the commission to administer the law so as to promote judicious use and maximum conservation and protection of the environment and the natural resources of the state; and TWC, §26.011, provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state by subjecting waste discharges or impending waste discharges to reasonable rules or orders adopted or issued by the Texas Commission on Environmental Quality in the public interest. Lastly, Texas Health and Safety Code (THSC), §341.039, specifically directs the commission to adopt and implement rules related to the expanded use of graywater and alternative onsite water; specifically directs the commission to adopt and implement minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water for irrigation, certain domestic uses, and agricultural, commercial, and industrial uses; and requires the commission to adopt rules relating to standards for control of graywater, graywater standards, and standards for alternative onsite water. Specific statutory authorization derives from House Bill (HB) 1902, which amended TWC, §26.0311, and THSC, §341.039 and §366.012(a), relating to Standards for Control of Graywater, Graywater Standards, and Rules Concerning On-Site Disposal Systems.

The amendments implement the statutory amendments of HB 1902.

§210.82.Definitions and General Requirements.

(a) Definitions. For the purposes of this subchapter, the following terms have the following meanings.

(1) Alternative onsite water--rainwater, air-conditioner condensate, foundation drain water, stormwater, swimming pool backwash and drain water, or reverse osmosis reject water. Cooling tower blowdown is regulated by Subchapter E of this chapter (relating to Special Requirements for Use of Industrial Reclaimed Water); therefore, for the purposes of this subchapter, all references to alternative onsite water do not include cooling tower blowdown. Reverse osmosis reject water generated at industrial facilities, commercial facilities, and institutions is regulated by Subchapter E of this chapter; therefore, for the purposes of this subchapter, all references to alternative onsite water do not include reverse osmosis reject water generated at industrial facilities, commercial facilities, and institutions. Reverse osmosis reject water generated at private residences and agriculture facilities may be used in accordance with this subchapter.

(2) Alternative water reuse system--a system designed and constructed to store and distribute one or more sources of alternative onsite water. An alternative water reuse system shall not contain, store, or distribute any graywater.

(3) Combined reuse system--a system designed and constructed to store and distribute graywater and one or more sources of alternative onsite water.

(4) Graywater-- wastewater from showers, bathtubs, handwashing lavatories, sinks that are used for disposal of household or domestic products, sinks that are not used for food preparation or disposal, and clothes-washing machines. Graywater does not include wastewater from the washing of material, including diapers, soiled with human excreta or wastewater that has come into contact with toilet waste.

(5) Graywater reuse system--a system designed and constructed to store and distribute graywater only. A graywater reuse system shall not contain, store, or distribute any source of alternative onsite water.

(b) Alternative water reuse systems. The following requirements apply to alternative water reuse systems used at a private residence, industrial facility, commercial facility, institution, or agriculture facility.

(1) Water from an alternative water reuse system may be reused for beneficial purposes including but not limited to landscape irrigation, gardening, composting, foundation stabilization, and toilet and urinal flushing. An alternative water reuse system may store and use either a single source or a combination of sources of alternative onsite water, and in any volume.

(2) Reverse osmosis reject water generated at an industrial facility, commercial facility, or an institution is prohibited from being stored and used in an alternative water reuse system. Reverse osmosis reject water generated by an industrial facility, commercial facility, or an institution is regulated by Subchapter E of this chapter.

(3) Reuse of water from an alternative water reuse system does not require authorization from the commission if used in accordance with this subchapter. The property owner is responsible for ensuring that the alternative water reuse system is properly operated and maintained to comply with the requirements of this subchapter.

(4) Water from an alternative water reuse system must be applied at a rate that will not result in ponding or pooling, or cause runoff across the property lines or onto any paved surface.

(5) Water from an alternative water reuse system shall not be applied using a spray distribution system except in accordance with the following conditions.

(A) Water from the spray distribution system must be applied at times when people and pets are not actively using the distribution area.

(B) Water from the spray distribution system must not be applied during rainfall events, when the ground is frozen, or within 24 hours after one-half inch or more of rain.

(C) Water from the spray distribution system must be applied at a rate to prevent ponding, puddling, or runoff.

(D) Water from the spray distribution system must not be sprayed or allowed to drift off the property.

(E) The spray distribution system must not be connected to a potable or raw water irrigation system unless suitable backflow prevention is provided to protect the potable or raw water system.

(F) The spray distribution system must be inspected and repaired as needed to prevent discharges to water in the state or off the property.

(6) The storage and use of water from an alternative water reuse system must not create a nuisance, threaten human health, or damage the quality of surface water or groundwater.

(7) Swimming pool backwash and drain water cannot be used within five days of adding chemicals for shock or acid treatment.

(8) Water from an alternative water reuse system that is used for toilet or urinal flushing must meet the following requirements. Property owners may refer to the regulatory guidance document that is required by the Texas Health and Safety Code, §341.039, for assistance in complying with these requirements.

(A) For residential toilet or urinal flushing, Escherichia coli (E. coli) must be less than 14 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample. For industrial, commercial, or agricultural toilet or urinal flushing, E. coli must be less than 2.2 MPN or CFU per 100 milliliters for 30-day geometric mean and less than 200 MPN or CFU per 100 milliliters maximum single grab sample.

(B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.

(C) All exposed piping and piping carrying alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER." An alternative water reuse system that stores only rainwater, commonly referred to as a rainwater harvesting system, and uses the water for potable purposes in accordance with §290.44 of this title (relating to Water Distribution) is exempt from this subparagraph.

(9) An alternative water reuse system cannot have a physical connection to an organized wastewater collection system or an on-site sewage facility (OSSF). When the system reaches capacity, it is allowed to overflow onto the ground only if the overflow is caused by inflow of rainwater or stormwater. Overflow under these conditions is exempt from the requirement of paragraph (4) of this subsection.

(10) An alternative water reuse system may be subject to backflow prevention requirements in §290.44 of this title to protect public water supply systems from cross-contamination.

(c) Graywater reuse systems and combined reuse systems. The following requirements apply to all graywater reuse systems and combined reuse systems.

(1) Construction of a graywater reuse system or a combined reuse system, including storage and distribution systems, must comply with this subchapter and any requirements of the local permitting authority.

(2) Water from a graywater reuse system or a combined reuse system must be applied at a rate that will not result in ponding or pooling and will not cause runoff across the property lines or onto any paved surface.

(3) The storage and use of water from a graywater reuse system or a combined reuse system must not create a nuisance, threaten human health, or damage the quality of surface water or groundwater.

(4) A graywater reuse system or combined reuse system may be subject to backflow prevention requirements in §290.44 of this title to protect public water supply systems from cross-contamination.

§210.83.Residential Use of Graywater and Alternative Onsite Water.

(a) An authorization from the commission is not required for the residential use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system when the total combined average is less than 400 gallons per day and the water is used in accordance with this subchapter. Unless directed by the executive director, an authorization from the commission is not required for the residential use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system when the total combined average is greater than or equal to 400 gallons per day and the water is used in accordance with this subchapter.

(b) The graywater and alternative onsite water must originate from a private residence.

(c) Water from a graywater reuse system or a combined reuse system may only be used at the private residence for the following purposes:

(1) to minimize foundation movement and cracking;

(2) for gardening;

(3) for composting;

(4) for landscaping; or

(5) for toilet or urinal flushing.

(d) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstance.

(1) Graywater reuse systems must be designed and constructed so that the storage tank required by subsection (e) of this section overflows to an organized wastewater collection system or an on-site sewage facility (OSSF) unless prohibited by Chapter 285, Subchapter H of this title (relating to Disposal of Graywater). The graywater must enter the organized wastewater collection system or OSSF through either one air gap or two backflow valves or backflow preventers.

(2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or an OSSF, unless prohibited by Chapter 285, Subchapter H of this title, prior to entering the storage tank required by subsection (e) of this section. Graywater must be diverted to the organized wastewater collection system or OSSF during periods of non-use of the system or if the storage tank required by subsection (e) of this section reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers.

(3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the storage tank required by subsection (e) of this section reaches 80% capacity.

(e) Except as authorized by subsection (j) of this section, graywater reuse systems and combined reuse systems must store the water in tanks and the tanks must:

(1) be clearly labeled as non-potable water;

(2) restrict access, especially to children;

(3) eliminate habitat for mosquitoes and other vectors;

(4) be able to be cleaned; and

(5) meet the structural requirements of §210.25(i) of this title (relating to Special Design Criteria for Reclaimed Water Systems).

(f) Graywater reuse systems and combined reuse systems must use piping that meets the piping requirement of §210.25 of this title.

(g) Water from a graywater reuse system or a combined reuse system shall not be applied using a spray distribution system except in accordance with the following conditions.

(1) Water from the spray distribution system must meet the following limits: Escherichia coli (E. coli) must be less than 14 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample.

(2) Water from the spray distribution system must be applied at times when people and pets are not actively using the distribution area.

(3) Water from the spray distribution system must not be applied during rainfall events, when the ground is frozen, or within 24 hours after one-half inch or more of rain.

(4) Water from the spray distribution system must be applied at a rate to prevent ponding, puddling, or runoff.

(5) Water from the spray distribution system must not be sprayed or allowed to drift off property.

(6) The spray distribution system must not be connected to a potable or raw water irrigation system unless suitable backflow prevention is provided to protect the potable or raw water system.

(7) The spray distribution system must be inspected and repaired as needed to prevent discharges to water in the state or off property.

(h) The property owner is responsible for ensuring that the graywater reuse system or combined reuse system is properly operated and maintained to achieve the following requirements. Monitoring and recordkeeping for E. coli and total suspended solids is not required. Property owners may refer to the regulatory guidance document that is required by the Texas Health and Safety Code, §341.039, for assistance in complying with these requirements.

(1) Graywater and alternative onsite water shall be treated to remove debris such as lint, leaves, twigs, and branches prior to entering the storage tank by use of a 50 mesh screen.

(2) Swimming pool backwash and drain water cannot be used within five days after adding chemicals for shock or acid treatment.

(3) Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements.

(A) E. coli must be less than 14 MPN or CFU per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample.

(B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.

(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER."

(i) Builders of private residences are encouraged to:

(1) install plumbing in new housing to collect graywater and alternative onsite water from all allowable sources, taking into consideration end-use requirements and maintaining sufficient blackwater waste flow; and

(2) design and install a subsurface distribution system around the foundation of new housing to minimize foundation movement or cracking.

(j) Property owners who have been disposing of wastewater from residential clothes-washing machines, otherwise known as laundry graywater, directly onto the ground prior to January 6, 2005, may continue disposing of laundry graywater under the following conditions.

(1) The disposal area must not create a nuisance or threaten human health.

(2) Surface ponding must not occur in the disposal area.

(3) The disposal area must support plant growth or be sodded with vegetative cover.

(4) The disposal area must have limited access and use by residents and pets.

(5) Laundry graywater that has been in contact with human or animal waste must not be disposed onto the ground surface.

(6) Laundry graywater must not be disposed onto an area where the soil is wet.

(7) A lint trap must be affixed to the end of the discharge line.

(8) The system has not been altered after January 6, 2005, has not created a nuisance, and does not discharge graywater from any source other than clothes-washing machines.

§210.84.Industrial, Commercial, or Institutional Use of Graywater and Alternative Onsite Water.

(a) For the purposes of this section, alternative onsite water does not include reverse osmosis reject water, as this source of water is regulated by Subchapter E of this chapter (relating to Special Requirements for Use of Industrial Reclaimed Water).

(b) An authorization from the commission is not required for the use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system at an industrial facility, commercial facility, or institution. Treatment required by this section does not require authorization from the commission.

(c) The graywater and alternative onsite water must be generated and used onsite.

(d) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstances.

(1) Graywater reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system, on-site sewage facility (OSSF), authorized outfall in a wastewater discharge permit, or authorized disposal area in a Texas Land Application Permit (TLAP). The graywater must be diverted to the organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP during periods of non-use of the graywater reuse system or if the system reaches maximum capacity. The graywater must enter the organized wastewater system or OSSF through either one air gap or two backflow valves or backflow preventers.

(2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP prior to entering the combined reuse system. Graywater must be diverted to the organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP during periods of non-use of the system or if the combined reuse system reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers.

(3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the combined reuse system reaches 80% capacity.

(e) Water from a graywater reuse system or a combined reuse system may be used onsite for the following activities.

(1) Process water. Water from a graywater reuse system or a combined reuse system that is used for process water must be treated to a standard that allows the water to be used in operational processes.

(2) Landscape maintenance. Water from a graywater reuse system or a combined reuse system that is used for landscape maintenance must meet the following limits.

(A) If the water will be applied in areas with public access, the water must meet the following limits:

(i) Escherichia coli (E. coli), 20 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters (ml), 30-day geometric mean; or

(ii) E. coli (not to exceed), 75 MPN or CFU per 100 ml, single grab sample.

(B) If the water will be applied in areas with restricted access to the public, the water must meet the following limits:

(i) E. coli, 200 MPN or CFU per 100 ml, 30-day geometric mean; or

(ii) E. coli (not to exceed), 800 MPN or CFU per 100 ml, single grab sample.

(3) Dust control. Water from a graywater reuse system or a combined reuse system that is used for dust control must meet the E. coli limits in paragraph (2)(B) of this subsection.

(4) Toilet or urinal flushing. Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements.

(A) E. coli must be less than 2.2 MPN or CFU per 100 ml for 30-day geometric mean and less than 200 MPN or CFU per 100 ml maximum single grab sample.

(B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.

(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping installed after January 6, 2005, must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER."

(5) Other uses. Water from a graywater reuse system or a combined reuse system that is used for other similar activities must:

(A) meet the E. coli limits in paragraph (2)(A) of this subsection if used in a way that the public may come into contact with the water; or

(B) meet the E. coli limits in paragraph (2)(B) of this subsection if used in a way that the public will not come into contact with the water.

(f) Water from a graywater reuse system or a combined reuse system that is required to meet the E. coli limits in subsection (e) of this section must be monitored for E. coli at least monthly. These records must be maintained at the site and be readily available for inspection by the commission for a minimum of five years.

§210.85.Agricultural Use of Graywater and Alternative Onsite Water.

(a) An authorization from the commission is not required for the use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system for agricultural purposes. Treatment required by this section does not require authorization from the commission.

(b) The graywater and alternative onsite water must be generated and used onsite.

(c) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstances.

(1) Graywater reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or on-site sewage facility (OSSF), unless prohibited by Chapter 285, Subchapter H of this title (relating to Disposal of Graywater). The graywater must be diverted during periods of non-use of the graywater reuse system or if the system reaches maximum capacity. The graywater must enter the organized wastewater collection system or OSSF through either one air gap or two backflow valves or backflow preventers.

(2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or OSSF, unless prohibited by Chapter 285, Subchapter H of this title prior to entering the combined reuse system. Graywater must be diverted to the organized wastewater collection system or OSSF during periods of non-use of the system or if the combined reuse system reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers.

(3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the combined reuse system reaches 80% capacity.

(d) Water from a graywater reuse system or a combined reuse system may be used for the following activities.

(1) Process water. Water from a graywater reuse system or a combined reuse system that is used for irrigation and other agricultural purposes may be treated to a standard that allows the water to be used in operational processes.

(2) Landscape maintenance. Water from a graywater reuse system or a combined reuse system that is used for landscape maintenance must meet the following limits.

(A) If the water will be applied in areas with public access, the water must meet the following limits:

(i) Escherichia coli (E. coli), 20 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters (ml), 30-day geometric mean; or

(ii) E. coli (not to exceed), 75 MPN or CFU per 100 ml, single grab sample.

(B) If the water will be applied in areas with restricted access to the public, the water must meet the following limits:

(i) E. coli, 200 MPN or CFU per 100 ml, 30-day geometric mean; or

(ii) E. coli, 800 MPN or CFU per 100 ml, single grab sample.

(3) Dust control. Water from a graywater reuse system or a combined reuse system that is used for dust control must meet the E. coli limits in paragraph (2)(B) of this subsection.

(4) Irrigation of fields. Water from a graywater reuse system or a combined reuse system that is used to irrigate fields where edible crops are grown or fields that are pastures for milking animals, the water must meet the E. coli limits in paragraph (2)(A) of this subsection. E. coli limits do not apply to graywater and alternative onsite water that is used to irrigate fields other than those where edible crops are grown or fields that are pastures for milking animals.

(5) Toilet or urinal flushing. Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements.

(A) E. coli must be less than 2.2 MPN or CFU per 100 ml for 30-day geometric mean and less than 200 MPN or CFU per 100 ml maximum single grab sample.

(B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.

(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER."

(6) Other uses. Water from a graywater reuse system or a combined reuse system that is used for other similar activities must:

(A) meet the E. coli limits in paragraph (2)(A) of this subsection if used in a way that the public may come into contact with the water; or

(B) meet the E. coli limits in paragraph (2)(B) of this subsection if used in a way that the public will not come into contact with the water.

(e) Water from a graywater reuse system or a combined reuse system that is required to meet the E. coli limits in subsection (d) of this section must be monitored for E. coli at least monthly. These records must be maintained at the site and be readily available for inspection by the commission for a minimum period of five years.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606427

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2141


CHAPTER 285. ON-SITE SEWAGE FACILITIES

SUBCHAPTER H. DISPOSAL OF GRAYWATER

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §285.80; the repeal of §285.81; and new §285.81.

The amendment to §285.80 and new §285.81 are adopted with changes to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5377) and, therefore, will be republished. The repeal of §285.81 is adopted without change and will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

House Bill 1902 (HB 1902 or bill), 84th Texas Legislature (2015), amended Texas Health and Safety Code (THSC), Chapters 341 and 366, and Texas Water Code, Chapter 26, in relation to the use of graywater and alternative onsite water. The bill requires TCEQ to develop standards to allow the reuse of graywater for toilet and urinal flushing.

Additionally, the bill creates a new regulatory classification for "alternative onsite water" which the bill defines as "rainwater, air-conditioning condensate, foundation drain water, storm water, cooling tower blowdown, swimming pool backwash and drain water, reverse osmosis reject water, or any other source of water considered appropriate by the commission." The bill directs TCEQ to develop similar standards for the reuse of this new source of water similar to graywater.

The bill provides authority to TCEQ to adopt and implement rules for the inspection and annual testing of graywater and alternative onsite water systems.

The bill allows an adjustment in the drainfield size of an on-site sewage facility (OSSF) if used in conjunction with a graywater reuse system.

Lastly, the bill requires TCEQ to develop a regulatory guidance manual to explain the graywater and alternative onsite water regulations.

The bill requires amendments to 30 TAC Chapter 210, Use of Reclaimed Water, and Chapter 285. The adopted rules allow for a reduction in the OSSF drainfield size if the OSSF is used in conjunction with a graywater reuse system, move all graywater reuse to Chapter 210, authorize toilet and urinal flushing as an additional reuse of graywater, authorize the reuse of alternative onsite water, establish uses of and treatment standards for alternative onsite water similar to graywater, incorporate nationally recognized treatment standards for graywater and alternative onsite water when used for toilet and urinal flushing, and revise bacteria limits from fecal coliform to Escherichia coli (E. coli).

HB 1902 retains the existing prohibition on the commission requiring a permit for the residential use of less than 400 gallons per day of graywater and adds alternative onsite water to the permit prohibition.

Because TCEQ does not issue permits for graywater and alternative onsite water reuse systems, the adopted rules do not include an inspection or testing program for these systems.

A regulatory guidance manual to explain the graywater and alternative onsite water regulations will be developed after adoption of this rulemaking.

A corresponding rulemaking is published in this issue of the Texas Register concerning Chapter 210, Subchapter F, Use of Graywater and Alternative Onsite Water.

Section by Section Discussion

§285.80, General Requirements

The adopted rule adds language to use terms for graywater reuse systems and combined reuse systems that are consistent with the adopted amendments to Chapter 210, Subchapter F, in a concurrent rulemaking.

Adopted §285.80(b) adds a requirement that a graywater reuse system must also comply with Chapter 210, Subchapter F since the rules for those systems have been moved to that chapter.

The adopted amendment moves former §285.81(g) to §285.80(c).

Adopted §285.80(d) requires existing graywater systems to continue to comply with the rules as the rules existed when the graywater system installation was completed. Any alterations to existing graywater systems must meet the requirements of the current rules.

Adopted §285.80(e) prohibits a reduction to OSSFs when using graywater reuse systems unless the OSSF meets the requirements of §285.81. No reduction in the size of the OSSF will be allowed when using a graywater reuse system unless the OSSF meets all of the conditions and requirements of §285.81.

Adopted §285.80(f) allows only OSSFs permitted for graywater to be connected to a graywater or combined reuse system. The adopted rule allows a combined reuse system to be connected to an OSSF permitted for graywater only and requires the alternative onsite water to be diverted prior to the connection. The adopted rule prohibits an alternative water reuse system from being connected to an OSSF. The adopted rule provides the piping requirements for connecting graywater to an OSSF.

§285.81, Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System.

The commission repealed §285.81 and replaced it with adopted new §285.81. The requirements of the repealed section are being incorporated into Chapter 210, Subchapter F, in a concurrent rulemaking. In order to provide clear guidance to property owners and homeowners with OSSFs, the adopted rule in the new §285.81 provides additional clarification on when and how requirements apply.

Adopted new §285.81 is titled, "Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System." Adopted new §285.81 provides technical requirements for the design, permitting, and operation of OSSFs serving single family residences which have a reduction based on the presence of a graywater reuse system or a combined reuse system. The adopted rule is limited to single family residences based on the limitations of statutory language in THSC, §366.012(a)(2)(B). Additionally, from a technical perspective, graywater generation proportions from a residence are relatively well understood and defined. However, non-residence proportions of graywater are not as well defined and are subject to varying patterns of wastewater generation over time as building activity changes. This uncertain nature of present and future graywater generation in non-residences does not lend itself to OSSF reductions.

Adopted new §285.81(a) clarifies that graywater and combined reuse systems are authorized without a permit. However, OSSFs which are reduced based on the presence of a graywater or combined reuse system require a permit and submission of planning materials. This subsection also clarifies that this section and the associated OSSF reduction only applies to single family residences.

Adopted new §285.81(b) provides the potential allowable sizing reduction to the OSSF disposal field. The reductions outlined in Figure: 30 TAC §285.81(b) were estimated using data contained in Table 4.2 of Design Manual, On-Site Wastewater Treatment and Disposal Systems (EPA/625/1-80/012) October 1980.

Adopted new §285.81(c) provides that a qualified professional plumber is responsible for documenting which sewage sources will be entering the OSSF. The evaluation of the plumbing should occur after the plumbing is installed.

Adopted new §285.81(d) and Figure: 30 TAC §285.81(d) provide the design organic strength of the wastewater entering the OSSF. The numbers are based on the assumptions that sewage containing all blackwater and graywater sources within a residence will be 300 milligrams per liter five-day biochemical oxygen demand (mg/l BOD5) and all graywater sources have no BOD5 concentration.

Adopted new §285.81(e) and (f) establish the qualifications needed to design OSSFs in this section and the BOD5 effluent quality that must be achieved by the reduced OSSF. The requirements are consistent with previously adopted sections of Chapter 285.

Adopted new §285.81(g) requires property owners to set aside an area for future OSSF expansion should the property owner abandon the graywater or combined reuse system at a later date or if required by the OSSF permitting authority to expand the OSSF. The area must meet the setbacks required by §285.91(10) and shall not be used for surface improvements.

Adopted new §285.81(h) prohibits property owners from applying graywater or alternative onsite water to the surface of their reduced OSSF disposal field. This action can overload the OSSF disposal area.

Adopted new §285.81(i) prohibits any physical connection between the graywater or combined reuse system and the OSSF since the OSSF is not designed to receive graywater.

Adopted new §285.81(j) requires three days of graywater storage when a graywater or combined reuse system is used in combination with a reduced OSSF. The requirement for storage is necessary so the property owner will not apply graywater during saturated landscape conditions. A graywater or combined reuse system that is not used in combination with a reduced OSSF is not subject to the requirement for three days of storage.

Adopted new §285.81(k) provides a mechanism to alert buyers, upon transfer of the property, of the limitations of the OSSF and their responsibilities for operating the OSSF and the graywater or combined reuse system.

Adopted new §285.81(l) requires that a property owner convicted or found in violation of any statute related to graywater or public health nuisance, and the system in question is not properly repaired in a timely manner, shall expand their OSSF and have it permitted to dispose of graywater.

Final Regulatory Impact Analysis Determination

TCEQ reviewed the adopted rulemaking in consideration of the regulatory analysis of major environmental rules required by Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to Texas Government Code, §2001.0225(a) because it does not meet the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3). The following is a summary of that review.

Texas Government Code, §2001.0225 applies to a "major environmental rule" adopted by a state agency, the result of which is to exceed standards set by federal law, exceed express requirements of state law, exceed requirements of delegation agreements between the state and the federal government to implement a state and federal program, or adopt a rule solely under the general powers of the agency instead of under a specific state law. A "major environmental rule" is a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

As the Author's/Sponsor's Statement of Intent makes clear, the 84th Texas Legislature, 2015, enacted HB 1902 with the aim of lessening Texas' demand for freshwater resources by encouraging and expanding the allowable uses of graywater and other recycled water. By updating decades-old statutory provisions governing graywater disposal and reuse with new technologies and systems that expand the possibilities for safe reuse of graywater on commercial, industrial, and domestic properties, the statutory changes from HB 1902 would ideally result in less demand for freshwater resources for water needs that do not require freshwater standards. More specifically, the Statement of Intent articulates that "by clarifying the existing {Texas Health and Safety Code (THSC)} standards and expanding the scope and uses of graywater and alternative onsite water {and ensuring that the Texas Water Code conforms to these changes}, C.S.H.B. 1902 could act as another part of the solution to Texas' water challenges."

To encourage the use of graywater systems, which helps to prevent a health and safety crisis due to a lack of water for drinking and other essential purposes, HB 1902 amends the THSC to direct TCEQ to adopt rules that allow for an adjustment in the size of a drainfield of an OSSF if used in conjunction with a graywater reuse system. Additionally, the adopted rulemaking adds language to §285.80 for terms for graywater reuse systems and combined reuse systems that are consistent with adopted amendments in a concurrent rulemaking involving Chapter 210, Subchapter F. As part of the same rulemaking, the commission repealed §285.81 and replaced it with a new §285.81. The requirements of the repealed section are being incorporated into Chapter 210, Subchapter F, in a concurrent rulemaking.

Therefore, the specific intent of the adopted rulemaking, which amends and repeals TCEQ rules, is to implement the legislative amendments in HB 1902, which eliminates duplicate provisions with other chapters in the title, and requires the commission to adopt rules to allow an adjustment in the size of a drainfield of an OSSF if used in conjunction with a graywater or combined reuse system. All of which aim to prevent a health and safety crisis due to a lack of water for drinking and other essential purposes. The adopted rulemaking does not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Accordingly, the commission concludes that the adopted rulemaking does not meet the definition of a "major environmental rule."

Even if this rulemaking was a "major environmental rule," this rulemaking meets none of the criteria in Texas Government Code, §2001.0225, for the requirement to prepare a full Regulatory Impact Analysis. First, this rulemaking is not governed by federal law. Second, it does not exceed state law but rather creates new minimum standards and corresponding processes under state law to ensure efficient regulatory oversight, while comprehensively protecting the state's natural resources. Third, it does not come under a delegation agreement or contract with a federal program, and finally, it is not being adopted under the TCEQ's general rulemaking authority. This rulemaking is being adopted under a specific piece of state legislation from HB 1902, Texas Legislature, 2015, which directs TCEQ to undertake this rulemaking in an effort to reasonably fulfill an obligation mandated by state law to implement the OSSF program under THSC, Chapter 366.

Therefore, the commission does not adopt the rule solely under the commission's general powers.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the regulatory impact analysis determination.

Takings Impact Assessment

TCEQ evaluated the adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007, which applies to governmental actions which affect private property. The following is a summary of that analysis.

The specific purpose of the adopted rulemaking is to implement the legislative amendments in HB 1902, which eliminates duplicate provisions with other chapters in 30 TAC and directs the commission to adopt rules to allow an adjustment in the size of a drainfield of an OSSF if used in conjunction with a graywater or combined reuse system. All of which aim to prevent a health and safety crisis due to a lack of water for drinking and other essential purposes. The adopted rulemaking substantially advances this stated purpose by adopting language in amended Chapter 285 to expand and encourage the allowable indoor and outdoor use and reuse of treated graywater and alternative onsite water by allowing for a reduction in the size of an OSSF's drainfield.

Promulgation and enforcement of the adopted rules are not a statutory or constitutional taking of private real property because, as the commission's analysis indicates, Texas Government Code, Chapter 2007, does not apply to these adopted rules because the rules do not impact private real property. Additionally, the public has access to vast quantities of graywater as the public themselves are the producers of their own graywater. Specifically, the adopted rulemaking does not apply to or affect any landowner's rights in any private real property because it does not burden (constitutionally), restrict, or limit any landowner's right to real property or reduce any property's value by 25% or more beyond that which would otherwise exist in the absence of the regulations. For graywater, there are no real property rights that have been granted for use of an individual's own graywater. These actions will not affect or burden private real property rights because the graywater and alternative onsite water are generated onsite and used onsite by the same individual.

Even if there were real property rights issued for graywater produced by the public, the commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules. Texas Government Code, §2007.003(b)(4), (11)(B), and (13)(A) - (C) state that the chapter does not apply to governmental actions reasonably taken to fulfill an obligation mandated by state law, to regulate OSSF, to respond a real and substantial threat to public health and safety, to significantly advance the health and safety purpose, and to not impose a greater burden than is necessary to achieve the health and safety purpose. All of the above exemptions apply to the adopted rulemaking. This rulemaking is adopted pursuant to the specific requirements of THSC, Chapter 366, which requires the commission to adopt rules to protect the environment and the health and safety of Texas citizens by encouraging use of graywater or combined reuse systems by amending the OSSF regulations to allow for a reduction in the size of an OSSF's drainfield. The adopted rulemaking encourages the use of graywater or combined reuse systems to respond to a real and substantial threat to public health and safety in the form of a lack of water for drinking and other essential purposes and encouraging use of graywater or combined reuse systems advances a health and safety purpose by making efforts to address Texas' water challenges. Finally, the adopted rulemaking imposes no greater burden than is necessary to achieve the health and safety purpose, the adopted rules are similar to the predecessor rules for OSSFs and do not establish a greater burden for most types of systems. Because this is an action that is taken in response to a real and substantial threat to public health and safety; is designed to significantly advance the health and safety purpose; and does not impose a greater burden than is necessary to achieve the health and safety purpose, this action is exempt according to the provisions of Texas Government Code, §2007.003. Lack of water for drinking and other essential purposes would be a health and safety crisis. This rulemaking could help to lessen the demand for freshwater resources for water needs that do not require freshwater standards, resulting in more drinking water and water for essential purposes.

Consistency with the Coastal Management Program

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

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

The specific CMP policies applicable to these adopted rules include Nonpoint Source Water Pollution and require, under the THSC, Chapter 366 (governing on-site sewage disposal systems) that on-site disposal systems be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters. The adopted rules ensure that OSSFs will perform properly when receiving only blackwater, and therefore, the rules are consistent with the CMP policies.

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies, because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas, and because the adopted rules do not relax current treatment or disposal standards.

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.

Public Comment

The commission held a public hearing on August 16, 2016. The comment period closed on August 22, 2016. The commission received comments prior to the public comment period and related communications during the public comment period from Texas State Representative Donna Howard (Representative Howard) and Texas State Representative Paul D. Workman (Representative Workman). The commission received comments during the public comment period from the City of Austin (COA); Harris County, Texas (Harris County); League of Women Voters of Texas (LWV); Lower Colorado River Authority (LCRA); Septic Systems Express; Texas On-Site Wastewater Association (TOWA); Texas Septic Systems Council; and Water ReNu, LLC (Water ReNu).

Ten commenters were in support of the rulemaking, no commenters were against the rulemaking, and the commenters suggested changes.

Response to Comments

General Comments

Comment

LWV supported the timely development of the rules, the inclusion of other onsite sources of water, and provision for a manual explaining the rules to the public.

Response

The commission acknowledges this comment.

Comment

Representatives Howard and Workman, reiterating some of the suggested rule changes from the COA, commented that the proposed rules should not allow graywater systems to overflow to OSSF systems without permission from the OSSF permitting authority.

Response

The commission agrees with this comment. Adopted §285.80(f) and §285.81(i) properly address this comment. No change was made in response to this comment.

Comment

Harris County commented that the proposed changes to Chapter 285 do not address OSSF design and operation for commercial facilities, industrial facilities, institutions, or agricultural facilities that elect to reuse graywater under Chapter 210. The commenter stated that if a commercial system elects to reuse graywater, the amendments in Chapter 285 fail to require design adjustments to suit the higher strength wastewater (there is no requirement for design for higher strength wastewater as in Chapter 285, Figure: 30 TAC §285.81(d) (Table II, Adjusted Organic Strength)). The commenter also stated that this type of oversight leaves a regulatory gap in OSSF system design, which could impact water quality and OSSF operation. Harris County recommended adding language for commercial facilities, industrial facilities, institutions, or agricultural facilities that will hold these facilities to the same standard as residential systems.

Response

The commission disagrees with this comment. THSC, §366.012(a)(2) addresses graywater separation of graywater for single family residences and allows for an adjustment of the OSSF for single family residences that have separated their graywater. Therefore, the OSSF for non-single family residences must be sized for the inclusion of graywater. Adopted §285.81(a) was amended to clarify that the potential reduction outlined in §285.81 only applies to single family residences.

Comment

TOWA is concerned that the potential "new program," and the proposed move of the graywater section from Chapter 285 to Chapter 210 by repealing §285.81, has the potential of eliminating a licensed group of professionals who are already performing inspection and testing of onsite wastewater treatment systems of tens of thousands of Texas residential and commercial properties. The commenter noted that creating a new program has the potential to cause an unnecessary increase in cost to users of graywater and alternative onsite water systems.

Response

The commission partially agrees with this comment. The commission is not proposing or adopting a testing and inspection program through this rulemaking. If a testing program will be required, then rules would need to be amended in a separate rulemaking. No change was made in response to this comment.

Comment

TOWA commented that the program could benefit immediately from the experience and training already existing in Chapter 285, which also keeps a workforce who is already going to these onsite locations performing inspections, collecting samples for testing of water quality eligible for a new license, if one is created, working. Therefore, TOWA commented that should testing of graywater or alternative onsite water systems be required by TCEQ, the skills possessed by trained OSSF licensees would be a natural fit.

Response

The commission partially agrees with this comment. The commission is not proposing or adopting a testing and inspection program through this rulemaking. If a testing program will be required, then rules would need to be amended in a separate rulemaking. No change was made in response to this comment.

§285.80

Comment

Harris County commented that the requirement in §285.80(c) that reuse does not "damage the quality of surface water or groundwater" is vague and potentially requires a higher burden of proof. Harris County recommended revising "damage" to "impact."

Response

The commission partially agrees with this comment. Although "damage" may require a higher burden of proof, the adopted rule matches THSC, §341.039(b). No change was made in response to this comment.

Comment

COA commented that §285.80(e) should be modified to read: "No reduction in the size of the on-site sewage facility (OSSF) will be allowed when using a graywater reuse system unless the OSSF meets all of the conditions and requirements of §285.81 of this title."

Response

The commission agrees with this comment. In response to this comment, adopted §285.80(e) was amended to clarify that all of the conditions and requirements of §285.81 must be met in order to reduce an OSSF when using a graywater reuse system.

§285.81

Comment

COA commented the word "Reduction" should be replaced with the word "Sizing" in the title for §285.81 so that the title reads: "OSSF Sizing for Single Family Residences with a Graywater Reuse System or a Combined Reuse System."

Response

The commission agrees with this comment. In response to this comment, the title of adopted §285.81 was revised to read, "Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combine Reuse System."

Comment

COA recommended clarifying that reductions in OSSF sizing are not always required, the word "Potential" should be inserted before "Percent Reduction" in the title and Table Header of Table I in §285.81(b).

Response

The commission agrees with this comment and revised adopted Figure: 30 TAC §285.81(b) as recommended.

Comment

Representatives Howard and Workman, reiterating some of the suggested rule changes from the COA, commented that the proposed rules should not prescribe "reductions" in size of an OSSF if a graywater system is also going to be used. The commenters noted that HB 1902, Section 2, allows TCEQ to "adjust" the size of an OSSF, since the OSSF might actually need to be larger, not smaller, if a graywater system will also be used (given the higher concentration of the effluent reaching the OSSF system).

Response

The commission agrees with this comment. In response to a separate comment, the title of adopted §285.81 was amended to clarify this was a sizing adjustment rather than "OSSF Reduction" and adopted §285.81(a) and (b) were amended to provide clarification of when a sizing adjustment may be made.

Comment

Representatives Howard and Workman commented that they encourage any specific details (such as the percent reduction chart) be included in TCEQ's guidance document only, and not in the rules themselves. The commenters noted that the reductions in the chart are too prescriptive and could lead to inappropriate sizing of OSSF systems. The commenters noted that suggested scenarios in a guidance document would be more appropriate, with latitude for permitting authorities to make appropriate sizing determinations as noted in the comments above. Additional communications with Representatives Howard and Workman's offices clarified that if recommended language consistent with final comments from the COA were made at adoption, this comment would be addressed.

Response

In response to separate comments from the COA during the comment period, the title of adopted §285.81, as well §285.81(a) and (b) were amended to clarify the intent of the sizing chart and to remove language that was interpreted as too prescriptive.

Comment

LCRA commented that §285.81(c) should be modified to require the master plumber to provide the permitting authority with a certification documenting which sewage sources enter the OSSF after the plumbing is installed because changes from the approved planning materials are a frequent occurrence during construction and a means for verification of sewage sources after construction is needed.

Response

The commission agrees with this comment. In response to this comment, adopted §285.81(c) was amended to reflect that the evaluation by the master plumber must be conducted after the plumbing is installed.

Comment

Harris County, Septic Systems Express, and Texas Septic Systems Council commented that §285.81(f) only allows a professional engineer to demonstrate that a proposed system can meet effluent quality to limits provided if secondary treatment is required, while §285.81(e) allows both a professional engineer and a professional sanitarian to show that a system can meet effluent quality limits if secondary treatment is not required. The commenters recommend amending §285.81(f) to include professional sanitarians as well.

Response

The commission disagrees with this comment. The adopted rule is consistent with Chapter 285 rules. Section 285.32(c)(5)(A)(ii) requires proprietary systems treating wastewater stronger than 300 mg/l BOD to be considered non-standard treatment systems and §285.5(a)(3)(A) requires professional engineers to submit designs for non-standard treatment systems which require secondary treatment. Allowing sanitarians to design systems for this particular high-strength effluent would create inconsistencies within Chapter 285. No change was made in response to this comment.

Comment

Septic Systems Express and Texas Septic Systems Council commented that for houses that will have graywater systems, the higher-than-normal organic strength of the wastewater going to the treatment unit will be offset by the reduction in volume and the higher retention time. Additionally, the commenters noted that there is no need for additional treatment when an aerobic treatment unit is being used in the new graywater application, this is because of the decreased hydraulic loading. The commenters stated that no additional designing than what's normally done and certainly no engineering will be required.

Response

The commission disagrees that additional detention time inside a primary treatment system/septic tank will reduce the higher strength wastewater to levels needed for disposal. No change was made in response to this comment.

Comment

Water ReNu commented that the text of proposed §285.81(j) should include a comma after "combined reuse system" to clarify that a graywater reuse system that doesn't have a reduced OSSF, does not require three days storage.

Response

The commission agrees with this comment. In response to this comment, adopted §285.81(j) was amended to include a comma before and after the phrase "used in association with a reduced effluent disposal system under this section…"

Comment

LCRA commented that §285.81(k) should be modified to require a standard "model" affidavit be included in the figures required by §285.90.

Response

The commission disagrees with this comment. This change is not possible as §285.90 is not a rule provision that is currently open and eligible for modification. No change was made in response to this comment.

Comment

Harris County commented that §285.81(k) should be amended to require the affidavit to include a metes and bounds description of the "specific reserve area that shall not contain surface improvements" for reduced effluent disposal systems. The commenter noted that doing so will assist with inspections by the permitting authority.

Response

The commission disagrees with this comment. The layout and location of OSSF components does not presently require a metes and bounds description. Requiring that for the location of future components is inconsistent with existing rules. No change was made in response to this comment.

Comment

Harris County commented that §285.81(l) should be modified in such a way that expands the availability of this enforcement tool to commercial and other systems (including single family residences with reuse systems without reduced effluent disposal systems).

Response

The commission partially agrees with this comment. OSSF reductions for non-single family residences with graywater reuse or combined reuse systems will not be allowed. Therefore, since the OSSF is already sized for graywater, connection of the graywater to the OSSF in these cases is presently required for compliance if the owner is convicted or found in violation under existing statutes. No change was made in response to this comment.

Comment

LCRA commented that §285.81(l) should be modified to include a definition for "improperly operating" that reads "operation in violation of 30 TAC Chapter 210, subchapter F, of this chapter, or a rule adopted or order or permit issued under this chapter."

Response

The commission partially agrees with this comment. In response to this comment, adopted §285.81(l) was amended to remove the language "for improperly operating the graywater reuse system or combined reuse system" and language was added to clarify that a conviction or violation of any statute related to graywater or public health nuisance will allow a permitting authority to require connection of a graywater system to an OSSF, that the OSSF must be expanded to accommodate the graywater and that the expansion of the OSSF must be permitted.

30 TAC §285.80, §285.81

Statutory Authority

The amended section and new section are adopted under Texas Water Code (TWC), §5.013 and §5.102, which establish the commission's general jurisdiction and provides general powers of the commission over other areas of responsibility as assigned to the commission under the TWC; TWC, §5.103 and §5.105, which require the commission to adopt any rule or policy necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.120, which requires the commission to administer the law so as to promote judicious use and maximum conservation and protection of the environment and the natural resources of the state; and TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state by subjecting waste discharges or impending waste discharges to reasonable rules or orders adopted or issued by the Texas Commission on Environmental Quality in the public interest. Lastly, Texas Health and Safety Code (THSC), §341.039 and §366.012, which specifically direct the commission to adopt and implement rules related to the expanded use of graywater and alternative onsite water; THSC, §341.039, which directs the commission to adopt and implement minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water; THSC, §366.012, which directs the commission to adopt rules to allow for an adjustment in the size required of an on-site sewage disposal system if the system is used in conjunction with a graywater or combined reuse system that complies with the rules adopted under THSC, §341.039; and THSC, §366.011, which establishes the commission's authority over the location, design, construction, installation, and proper functioning of on-site sewage disposal systems.

The amended section and new section are adopted under the authority granted to the TCEQ by the Texas Legislature in THSC, Chapter 366. Specific statutory authorization derives from House Bill (HB) 1902, which amended TWC, §26.0311, and THSC, §341.039 and §366.012(a), relating to Standards for Control of Graywater, Standards for Graywater and Alternative Onsite Water, and Rules Concerning On-Site Disposal Sewage Disposal Systems.

The amendment section and new section implement the statutory amendments of HB 1902.

§285.80.General Requirements.

(a) For the purpose of this chapter, graywater is defined as wastewater from showers; bathtubs; handwashing lavatories; sinks that are used for disposal of household or domestic products; sinks that are not used for food preparation or disposal; and clothes-washing machines. Graywater does not include wastewater from the washing of material, including diapers, soiled with human excreta or wastewater that has come in contact with toilet waste.

(b) Construction of a graywater reuse system, including storage and disposal systems, must comply with this chapter; Chapter 210, Subchapter F of this title (relating to Use of Graywater and Alternative Onsite Water); and any more stringent requirements of the local permitting authority. For the purposes of this subchapter, a graywater reuse system begins at the graywater stub-out of a single family dwelling.

(c) A graywater reuse system must not create a nuisance or damage the quality of surface water or groundwater. If a graywater reuse system creates a nuisance, threatens human health, or damages the quality of surface water or groundwater, the permitting authority may take action under §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs).

(d) A graywater reuse system shall comply with the requirements of this subchapter as they existed on the date installation was completed. The previous version of this subchapter is continued in effect for this purpose. Any alterations to an existing system must comply with this chapter; Chapter 210, Subchapter F of this title; and any more stringent requirements of the local permitting authority.

(e) No reduction in the size of the on-site sewage facility (OSSF) will be allowed when using a graywater reuse system unless the OSSF meets all of the conditions and requirements of §285.81 of this title (relating to Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System).

(f) If the OSSF is not a reduced OSSF as described in §285.81 of this title, the graywater from either a graywater reuse system or a combined reuse system authorized under Chapter 210, Subchapter F of this title may, be connected to the OSSF to dispose of the graywater during periods when graywater is not being reused. If the reuse system is a combined reuse system as defined under Chapter 210, Subchapter F of this title, the flows from alternative onsite water sources must be diverted and shall not be allowed to enter the OSSF. Alternative water reuse systems as defined in Chapter 210, Subchapter F of this title, shall not be connected to the OSSF as OSSFs are not authorized nor designed to treat or dispose of flows from alternative onsite water sources. The piping connecting the graywater to the OSSF shall meet the applicable requirements of Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSFs).

§285.81.Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System.

(a) Graywater reuse systems and combined reuse systems are authorized in Chapter 210, Subchapter F of this title (relating to Use of Graywater and Alternative Onsite Water) without a permit, without the submission of planning materials, and without meeting the requirements and conditions of this section. However, a homeowner requesting an on-site sewage facility (OSSF) disposal system smaller than required in §285.33 of this title (relating to Criteria for Effluent Disposal Systems) must obtain a permit and meet the requirements and conditions of this section. Additionally, the potential reduction of the OSSF disposal system in this section only applies to single family residence with a graywater reuse or a combined reuse system. OSSF disposal systems for non-single family residences with a graywater reuse or a combined reuse system shall not have an OSSF disposal system reduction.

(b) Effluent disposal system sizing. If the graywater reuse system or combined reuse system serving the single family residence is in compliance with Chapter 210, Subchapter F of this title, the effluent disposal system required in §285.33 of this title may be reduced in accordance with Table I in Figure: 30 TAC §285.81(b) of this section.

Figure: 30 TAC §285.81(b) (.pdf)

(c) Verification of plumbing entering the OSSF. A licensed master plumber shall evaluate and document, after the plumbing is installed, which sewage sources will be entering the OSSF. The documentation must be provided to the OSSF permitting authority.

(d) Increased wastewater strength. When graywater is removed from the total sewage stream, the remaining sewage stream entering the OSSF will have a higher organic strength. The resulting increase in sewage strength shall be determined in accordance with Table II in Figure: 30 TAC §285.81(d) of this section.

Figure: 30 TAC §285.81(d) (.pdf)

(e) If the effluent disposal system does not require secondary treatment, either a professional sanitarian or a professional engineer shall demonstrate with effective treatment design and supporting calculations that the proposed treatment system will reduce the effluent quality down to 140 milligrams per liter five-day biochemical oxygen demand (mg/l BOD5) prior to entering the effluent disposal system.

(f) If the effluent disposal system requires secondary treatment, then a professional engineer shall demonstrate with effective treatment design and supporting calculations that the effluent quality meets the levels outlined in §285.32(e) of this title (relating to Criteria for Sewage Treatment Systems).

(g) If the effluent disposal system is reduced based on the presence of a graywater reuse system or a combined reuse system, a reserve area equivalent to the reduced area shall be shown to be available for future construction of a disposal field should the graywater reuse system or combined reuse system be abandoned at a later date. The reserve area shall meet the setbacks required by §285.91(10) of this title (relating to Tables) and shall not be used for any surface improvements.

(h) Graywater or alternative onsite water, as defined in Chapter 210, Subchapter F of this title, shall not be applied to the surface of a reduced effluent disposal system.

(i) The reduced effluent disposal system is not sized to accommodate graywater. Therefore, there shall not be any physical connection between the graywater reuse system or the combined reuse system and any part of the OSSF without authorization from the OSSF permitting authority.

(j) In addition to the requirements outlined in Chapter 210, Subchapter F of this title, a graywater reuse system or a combined reuse system, used in association with a reduced effluent disposal system under this section, must have a storage tank capable of storing a volume of three days of graywater. The storage is necessary to prevent application of graywater during periods when the landscape is saturated.

(k) Before a license to operate is issued for a reduced effluent disposal system allowed under this section, an affidavit shall be properly filed and recorded in the deed records of the county. The affidavit must include the owner's full name, the legal description of the property, a statement that the permit for the OSSF is transferred to the new owner upon transfer of the property, a statement that the effluent disposal system is reduced due to the presence of a graywater reuse system or a combined reuse system, a statement that the specified reserve area shall not contain surface improvements, and a statement that the graywater reuse system or combined reuse system cannot be connected to the OSSF without obtaining a permit from the OSSF permitting authority.

(l) If the property owner of a graywater reuse system or a combined reuse system on a property served by a reduced effluent disposal system is convicted under or found in violation of any statute related to graywater or public health nuisance, and the system is not properly repaired in a timely manner, the OSSF permitting authority may require the graywater to be connected to the OSSF. If the OSSF permitting authority requires the graywater to be connected to the OSSF, the effluent disposal system must be expanded to accommodate all the flow required in §285.91(3) of this title, and the expansion must be permitted by the OSSF permitting authority.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606428

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2141


30 TAC §285.81

Statutory Authority

The repeal is adopted under Texas Water Code (TWC), §5.013 and §5.102, which establish the commission's general jurisdiction and provides general powers of the commission over other areas of responsibility as assigned to the commission under the TWC; TWC, §5.103 and §5.105, which require the commission to adopt any rule or policy necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §5.120, which requires the commission to administer the law so as to promote judicious use and maximum conservation and protection of the environment and the natural resources of the state; and TWC, §26.011, which provides the commission with the authority to establish the level of quality to be maintained in, and to control the quality of, the water in the state by subjecting waste discharges or impending waste discharges to reasonable rules or orders adopted or issued by the TCEQ in the public interest. Lastly, Texas Health and Safety Code (THSC), §341.039 and §366.012, which specifically direct the commission to adopt and implement rules related to the expanded use of graywater and alternative onsite water; THSC, §341.039, which directs the commission to adopt and implement minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative onsite water; THSC, §366.011, which establishes the commission's authority over the location, design, construction, installation, and proper functioning of on-site sewage disposal systems; and THSC, §366.012, which directs the commission to adopt rules to allow for an adjustment in the size required of an on-site sewage disposal system if the system is used in conjunction with a graywater or combined reuse system that complies with the rules adopted under THSC, §341.039 and which requires the commission to adopt rules consistent with the policy defined in TWC, §26.0311, and THSC, §341.039 and §366.012, relating to Standards for Control of Graywater, Graywater Standards, and Rules Concerning On-Site Disposal Systems.

Specific statutory authorization derives from House Bill (HB) 1902, which amended TWC, §26.0311, and THSC, §341.039 and §366.012(a).

The repeal implements the statutory amendments of HB 1902.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606430

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-2141


CHAPTER 331. UNDERGROUND INJECTION CONTROL

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §331.9 and §331.131.

Amended §331.9 and §331.131 are adopted without changes to the proposed text as published in the July 22, 2016, issue of the Texas Register (41 TexReg 5383) and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

House Bill (HB) 2230, 84th Texas Legislature, 2015, authored by Representative Lyle Larson, provides authority for the TCEQ to authorize an injection well used for oil and gas waste disposal to be used for the disposal of nonhazardous brine generated by a desalination operation or nonhazardous drinking water treatment residuals (DWTR). HB 2230 adds Texas Water Code (TWC), §27.026 that allows the TCEQ to authorize, by individual permit, general permit, or by rule, a Class V injection well for the disposal of such nonhazardous brine or nonhazardous DWTR by injection into a Class II well permitted by the Railroad Commission of Texas (RRC) under TWC, Chapter 27, Subchapter C. The adopted rules are consistent with the long-standing practice of the TCEQ's Underground Injection Control (UIC) program to authorize Class V injection wells by rule.

Section by Section Discussion

In addition to adopting amendments to implement HB 2230, the commission adopts non-substantive changes to update the rules in accordance with current Texas Register style and format requirements, improve readability, and establish consistency in the rules. These non-substantive changes are not intended to alter the existing rule requirements in any way and are not specifically discussed in this preamble. The commission also adopts other minor amendments to be consistent with current language in Chapter 331.

§331.9, Injection Authorized by Rule

The commission adopts amended §331.9(b)(2)(E) to update the reference to Chapter 331, Subchapter K to reflect the current title, "Additional Requirements for Class V Injection Wells Associated with Aquifer Storage and Recovery Projects" to be consistent with current language in Chapter 331.

The commission adopts §331.9(b)(2)(F) to state that an owner or operator of a Class V well authorized for disposal by injection of certain wastes into a Class II disposal well is prohibited from injecting into the well if the owner or operator fails to comply with §331.9(b)(3).

The commission adopts §331.9(b)(3) to provide authorization by rule of a Class V injection well for disposal of nonhazardous brine from a desalination operation or nonhazardous DWTR into a Class II disposal well permitted by the RRC whose operator has an active Form P-5 Organization Report in good standing with the RRC. The RRC requires the Form P-5 Organization Report for any entity performing operations within the jurisdiction of the RRC's Oil and Gas Division in accordance with Oil and Gas Statewide Rule 1 (16 TAC §3.1). The Form P-5 Organization Report includes provisions for financial assurance for plugging and abandonment of a disposal well.

The commission adopts §331.9(b)(3)(A) to state that Chapter 331, Subchapter H (which references the standards for Class V wells) and §331.9(a) (which references the requirements for plugging and abandonment of a well authorized by rule prior to January 1, 1982, for Class V wells, motor vehicle waste disposal wells, large capacity septic systems, large capacity cesspools, subsurface fluid distribution systems, and dry wells) are not applicable to a Class V well authorized by rule to inject waste into a Class II well permitted by the RRC. The RRC's construction and closure standards for the Class II disposal well would be the applicable construction and closure standards for a Class V well authorized by rule for disposal by injection of nonhazardous brine from a desalination operation or nonhazardous DWTR into a Class II disposal well permitted by the RRC.

The commission adopts §331.9(b)(3)(B) to provide that the use or disposal of radioactive material under §331.9(b)(3) is subject to the applicable requirements of 30 TAC Chapter 336.

§331.131, Applicability

The commission adopts amended §331.131 to exclude Class V wells authorized by rule to dispose of nonhazardous brine from a desalination operation or nonhazardous DWTR by injection into a Class II well permitted by the RRC from the requirements of Chapter 331, Subchapter H. The RRC's Class II disposal well standards would be the applicable standards for a Class V well authorized by rule for disposal by injection of nonhazardous brine from a desalination operation or nonhazardous DWTR into a Class II disposal well permitted by the RRC.

The commission also adopts amended §331.131 to update the term "aquifer storage wells" to "aquifer storage and recovery injection wells" and to update the reference to Chapter 331, Subchapter K to reflect the current title, "Additional Requirements for Class V Injection Wells Associated with Aquifer Storage and Recovery Projects" to be consistent with current language in Chapter 331.

Final Regulatory Impact Analysis Determination

The commission reviewed the adopted rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225 because this rulemaking action does not meet the Texas Government Code definition of a "major environmental rule." "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

The specific intent of the adopted rules is to implement the statutory requirements of TWC, §27.026, enacted by HB 2230, which provides that the commission may authorize by individual permit, general permit, or by rule, a Class V injection well for the disposal of nonhazardous desalination brine or nonhazardous DWTR by injection into a Class II disposal well permitted by the RRC. The adopted rules substantially advance this purpose by providing an authorization by rule for a Class V injection well for the disposal of nonhazardous desalination brine or nonhazardous DWTR by injection into a Class II disposal well permitted by the RRC. The intent is not inconsistent with the first prong of the definition of "major environmental rule."

However, the adoption does not meet the second prong of the definition of "major environmental rule" because the rulemaking does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment or public health and safety of the state or a sector of the state or impose additional regulatory burdens that would affect the economy or a sector of the economy in a material way. The adopted rules implement the legislative directives of HB 2230 and do not impose additional regulatory burdens that affect the economy or a sector of the economy in a material way.

Furthermore, the adopted rules do not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). The adopted rules do not exceed a standard set by federal law because the adopted rules are consistent with federal standards for Class V injection wells. The adopted rules do not exceed an express requirement of state law because the adopted rules are consistent with the express requirements of HB 2230 and TWC, §27.026; and with TWC, §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells. Further, the adopted rules do not exceed requirements set out in the TCEQ's UIC program authorized for the state of Texas under the federal Safe Drinking Water Act. Finally, the rulemaking is not adopted under the general powers of the agency, but is adopted under the express requirements of HB 2230 and TWC, §27.026.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the Draft Regulatory Impact Analysis Determination.

Takings Impact Assessment

The commission evaluated this adopted rulemaking action and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's preliminary assessment is that implementation of these adopted rules does not constitute a taking of real property.

The adopted action implements the statutory requirements of TWC, §27.026, enacted by HB 2230. TWC, §27.026 provides that the commission may authorize, by individual permit, general permit, or by rule, a Class V injection well for the disposal of nonhazardous desalination brine or nonhazardous DWTR by injection into a Class II disposal well permitted by the RRC. The adopted rules substantially advance their purpose by amending existing commission rules to establish an authorization by rule for an existing Class II disposal well permitted by the RRC as a Class V injection well for the disposal of nonhazardous desalination brine or nonhazardous DWTR.

Promulgation or enforcement of these adopted rules will be neither a statutory nor a constitutional taking of private real property. The adopted rulemaking does not affect a landowner's rights in private real property because this rulemaking action does not burden (constitutionally), nor restrict or limit, the owner's right to property and reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. The adopted rules establish an authorization by rule for an existing Class II disposal well permitted by the RRC as a Class V injection well for the disposal of nonhazardous desalination brine or nonhazardous DWTR by injection into a Class II disposal well permitted by the RRC consistent with the requirements of HB 2230. Because the adopted rules apply only to Class II disposal well operators that seek authorization to conduct the subject Class V disposal activity, the rules do not restrict or limit an owner's rights in real property or reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. Therefore, the adopted rules do not affect real property in a manner that is different than real property would have been affected without the adopted rules.

Consistency with the Coastal Management Program

The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program (CMP).

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the consistency with the CMP.

Effect on Sites Subject to the Federal Operating Permits Program

The adopted rules will not require any revisions to federal operating permits.

Public Comment

The commission held a public hearing on August 16, 2016. The comment period closed on August 22, 2016. The commission received comments from Lotus, LLC (Lotus) and Water Remediation Technology (WRT). The commenters expressed support for the proposed rules. They also stated that the requirements of the commission's radioactive licensing rules (which are not under consideration in this rulemaking) impose costs on the disposal of DWTR that contain regulated levels of naturally occurring radioactive material (NORM).

Response to Comments

Comment

Lotus objected to dual TCEQ-RRC regulation of NORM contaminated DWTR. WRT noted that HB 2230 is silent on whether a radioactive materials license is required for disposal of DWTR.

Response

To ensure that these rules are consistent with HB 2230, all comments were carefully reviewed. The adopted rules are consistent with the provisions of HB 2230. The commission respectfully points out that licensing requirements for NORM and oil and gas NORM are contained in Texas Health and Safety Code (THSC), §§401.412 - 401.415 and not in TWC, Chapter 27, which was amended by HB 2230. The commission has regulatory jurisdiction for NORM while RRC has exclusive regulatory jurisdiction for oil and gas NORM. No changes have been made in response to these comments.

Comment

Lotus requested the commission exempt desalination brine and DWTR from the requirements of Chapter 336 and clarify the exemption in a new Memorandum of Understanding (MOU) between TCEQ and RRC or amend the existing MOU. Lotus further stated that instead of amending or entering into a new MOU between the RRC and the commission to implement the Class II-Class V disposal option as required by TWC, §27.026 and HB 2230, the commission consider including DWTR waste in an MOU between the Texas Department of State Health Services (TDSHS) and RRC.

Response

There is no statutory basis to exempt desalination brine and DWTR wastes containing NORM above exempted levels from the licensing requirements of Chapter 336. Chapter 336 was amended effective July 21, 2005 to add Subchapter K which provides for the licensing of the commercial disposal of NORM waste from public water systems in Class I injection wells. Licensing is a statutory requirement under THSC, §401.101 which prohibits a person from receiving, processing or disposing of NORM unless the person has a license, registration or exemption from TDSHS or the commission. HB 2230 did not revise any requirements in the THSC. HB 2230 specifically requires the commission to enter or amend an MOU with RRC. No changes have been made in response to these comments.

Comment

Lotus and WRT pointed out the significant cost of disposal of DWTR containing NORM, but also noted that radionuclide water treatment is not a big industry and a finite number of cities have this issue. Lotus stated that the requirement to obtain a radioactive materials license for the disposal of DWTR containing NORM, in addition to Lotus' existing radioactive materials license, would increase the cost of disposal for Lotus and for municipalities, causing operators to pass these costs to generators that use the disposal facility. In summary, the commenters estimated the additional cost to municipalities would be $3,500 per year for monitoring and testing and approximately $5,000 per load for waste preparation. The commenters estimated that the additional cost to operators would be an initial expense of approximately $500,000 for facility upgrades and licensing, approximately $150,000 annually for TCEQ licensing fees and monitoring, and $5,000 per load for waste preparation including hazardous materials personnel.

Response

The commission's exclusive jurisdiction over solid waste, from which oil and gas waste is excluded, is established in THSC, Chapter 361. The commission's exclusive jurisdiction over NORM, from which oil and gas NORM is excluded, is established in THSC, Chapter 401. The RRC's jurisdiction over oil and gas waste is established in THSC, Chapter 361 and in Texas Natural Resources Code, Chapter 91. THSC, Chapter 401 establishes that RRC and TDSHS each have jurisdiction over certain aspects of oil and gas NORM.

HB 2230 and the adopted rules authorize disposal of desalination brine and DWTR that are nonhazardous and contain exempt levels of NORM. These wastes must be characterized to determine if they are nonhazardous and contain non-exempt levels of NORM. Lotus' estimates include costs related to making these determinations as well as cost estimates which appear to address radioactive materials license requirements. No changes have been made in response to these comments.

Comment

The majority of comments provided by Lotus and WRT relate to waste streams that could not, by statute or rule, be permitted under the provisions of HB 2230. These comments range from the occurrence of radionuclides in ground water, health effects and risks of exposure to radionuclides in drinking water, water treatment for NORM and hazardous constituents, environmental risks related to NORM disposal, and technical permitting and licensing requirements.

Response

The comments on these topics do not apply to HB 2230 and are outside the scope of this rulemaking. No changes have been made in response to these comments.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §331.9

Statutory Authority

The amendment is adopted under the authority of the Texas Water Code (TWC), §5.103, which provides the commission the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; TWC, §5.120, which authorizes the commission to administer the law so as to promote the judicious use and maximum conservation and protection of the environment and natural resources of the state; TWC, §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and TWC, §27.026, which allows the commission to authorize by individual permit, general permit, or by rule, a Class V injection well for the disposal by injection of nonhazardous desalination brine or nonhazardous drinking water treatment residuals (DWTR) into a Class II disposal well permitted by the Railroad Commission of Texas under TWC, Chapter 27, Subchapter C.

The adopted amendment implements House Bill 2230, 84th Texas Legislature, 2015, which allows the commission to authorize by individual permit, general permit, or by rule, a Class V injection well for the disposal by injection of nonhazardous desalination brine or nonhazardous DWTR into a Class II disposal well permitted by the Railroad Commission of Texas under TWC, Chapter 27, Subchapter C.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606419

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-6812


SUBCHAPTER H. STANDARDS FOR CLASS V WELLS

30 TAC §331.131

Statutory Authority

The amendment is adopted under the authority of the Texas Water Code (TWC), §5.103, which provides the commission the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; TWC, §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; TWC, §5.120, which authorizes the commission to administer the law so as to promote the judicious use and maximum conservation and protection of the environment and natural resources of the state; TWC, §27.019, which requires the commission to adopt rules reasonably required for the regulation of injection wells; and TWC, §27.026, which allows the commission to authorize by individual permit, general permit, or by rule, a Class V injection well for the disposal by injection of nonhazardous desalination brine or nonhazardous drinking water treatment residuals (DWTR) into a Class II disposal well permitted by the Railroad Commission of Texas under TWC, Chapter 27, Subchapter C.

The adopted amendment implements House Bill 2230, 84th Texas Legislature, 2015, which allows the commission to authorize by individual permit, general permit, or by rule, a Class V injection well for the disposal by injection of nonhazardous desalination brine or nonhazardous DWTR into a Class II disposal well permitted by the Railroad Commission of Texas under TWC, Chapter 27, Subchapter C.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 9, 2016.

TRD-201606420

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: December 29, 2016

Proposal publication date: July 22, 2016

For further information, please call: (512) 239-6812