TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 220. REGIONAL ASSESSMENTS OF WATER QUALITY

SUBCHAPTER A. PROGRAM FOR MONITORING AND ASSESSMENT OF WATER QUALITY BY WATERSHED AND RIVER BASIN

30 TAC §220.4, §220.6

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes amendments to §220.4 and §220.6.

Background and Summary of the Factual Basis for the Proposed Rules

House Bill 3618 (HB 3618 or bill), 85th Texas Legislature (2017), repealed Texas Water Code (TWC), §26.0285 which required, to the greatest extent practicable, that all Texas Pollutant Discharge Elimination System (TPDES) permits within a single watershed contain the same expiration date (known as basin permitting). The bill also amended TWC, §26.0135(d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, §26.0285.

TWC, §26.0135 was created by the 72nd Texas Legislature (1991). Also known as "the Texas Clean Rivers Act," the legislation provided a framework for river authorities and TCEQ's predecessor agency to establish a public input process, strategic monitoring, and the periodic assessment of water quality within each river basin of the state. Since 1991, river authorities and other partners in TCEQ's Clean Rivers Program have continued to provide surface water quality monitoring and assessments of waterbodies in Texas' river basins. TCEQ uses this information in water quality management programs such as the Texas Integrated Report of Surface Water Quality, the Texas Surface Water Quality Standards, total maximum daily loads, watershed protection plans, and wastewater permitting.

TWC, §26.0285 was created by the 75th Texas Legislature (1997) to create the basin permitting program. State and federal rules allow permits to be issued for five-year terms. In order to comply with basin permitting rules, a substantial number of TPDES permits were required to be issued for terms between two and four years.

This rulemaking will implement HB 3618 changes related to TWC, §26.0135(d). In a corresponding rulemaking, published in this issue of the Texas Register, the commission also proposes the repeal of 30 TAC §305.71, Basin Permitting, to implement HB 3618 changes to TWC, §26.0285.

Section by Section Discussion

§220.4, Responsibilities of River Authorities and Designated Local Governments

Proposed changes to §220.4 are to ensure consistency between statute and rule. Proposed revisions remove the requirement to coordinate data collection efforts with the permitting cycle referenced in TWC, §26.0285, which was repealed by HB 3618.

§220.6, Reporting Requirements

Proposed changes to §220.6 revise the frequency of submission for summary reports that are based on the basin permitting cycle referenced in TWC, §26.0285. The change is needed due to the repeal of TWC, §26.0285 by HB 3618. The proposed changes specify a report to be submitted once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance, as amended.

Fiscal Note: Costs to State and Local Government

Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or for other units of state or local government as a result of the administration or enforcement of the proposed rules.

The proposed rules would implement portions of HB 3618. HB 3618 repeals TWC, §26.0285 regarding "basin permitting rules," and amends TWC, §26.0135(d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, §26.0285. The proposed revisions to Chapter 220 replace cross-references to basin permitting with an established frequency for submittal of summary reports.

River authorities are the primary participants in the Texas Clean Rivers Program (CRP), however, local governments may enter into direct agreement with the commission to participate in the CRP. In addition to the current 12 river authorities, there is one water district, one council of government, and one federal agency that partners with TCEQ through the CRP. Each of these governmental entities will be affected by the proposed rulemaking.

Under the proposed rules, partners in the CRP will be required to submit summary reports on a less frequent basis than currently required. The proposed rules would change the frequency of submission for summary reports from the five-year basin permitting cycle, to once every six years, on average.

With a reduced frequency of submission of the summary reports, TCEQ anticipates that for each year in the three biennia' cycle, beginning in the first even-numbered fiscal year after the proposed rules are in effect, each governmental entity participating in the CRP will save approximately $300 per year. The savings are not considered significant and it is assumed that any savings would be reallocated to support other program tasks.

Public Benefits and Costs to Businesses and Individuals

Ms. Montalvo also determined that for each year of the first five years the proposed rules are in effect, the public benefits anticipated from the changes seen in the proposed rules would be more efficient reporting by CRP participants. Although summary reports would be submitted less frequently as a result of the amendment to §220.6(a), the revised frequency can adequately capture changes in water quality detected in monitoring and assessment to support the agency's water quality management programs.

No fiscal implications are anticipated for businesses or individuals. Businesses and individuals are not direct participants in a CRP, and will not be impacted by the proposed amendments to Chapter 220. The proposed rules would change reporting requirements for CRP participants and would not affect regulatory or oversight responsibilities of governmental entities.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rules for the first five-year period the proposed rules are in effect. The proposed changes correct rule references and require governmental partners in the CRP to submit summary reports on a less frequent basis than currently required.

Small Business Regulatory Flexibility Analysis

The commission reviewed this proposed rulemaking and determined that a Small Business Regulatory Flexibility Analysis is not required because the proposed rules do not adversely affect small or micro-businesses for the first five-year period the proposed rules are in effect.

Local Employment Impact Statement

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

Rural Communities Impact Assessment

The commission reviewed this proposed rulemaking and determined that the proposed rules do not adversely affect a rural community in a material way for the first five years that the proposed rules are in effect. These state-wide rules will not affect rural communities or non-rural communities in any way. Governmental entities in the CRP will be required to submit summary reports on a less frequent basis than currently required.

Government Growth Impact Assessment

The commission prepared a Government Growth Impact Statement Assessment for this proposed rulemaking. The proposed rules do not create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; create a new regulation; expand, limit or repeal an existing regulation; nor increase or decrease the number of individuals subject to the rule's applicability.

During the first five years that the proposed rules would be in effect, it is not anticipated that there will be an adverse impact on the state's economy. The proposed rulemaking is administrative in nature and will correct rule references and require partners in the CRP to submit summary reports on a less frequent basis than currently required.

Draft Regulatory Impact Analysis Determination

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking 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. "Major environmental rule" is defined as 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. This 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.

This rulemaking deletes the reference in §220.4(a)(2)(C) and §220.6(a) to TWC, §26.0285. The reference in §220.4(a)(2)(C) was used to coordinate water quality monitoring with the basin permitting cycle specified in TWC, §26.0285. The reference in §220.6(a) was used to set a schedule for submitting summary reports by each participant in TCEQ's Clean Rivers Program based on the basin permitting cycle. The proposed change to §220.6(a) would specify that summary reports be submitted once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance. These changes are proposed because the 85th Texas Legislature repealed TWC, §26.0285 making it no longer applicable as a reference for compliance in §220.4(a)(2)(C) and §220.6(a). The rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Therefore, the commission finds that this rulemaking is not a "major environmental rule."

Furthermore, the rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 only applies to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopts a rule solely under the general powers of the agency instead of under a specific state law.

Specifically, the rulemaking does not exceed federal standards because no applicable federal standards exist regarding the timeline for submitting river basin reports and the amendment is proposed for the purpose of clarifying when river basin reports should be submitted. Also, the rulemaking does not exceed an express requirement of state law nor exceed a requirement of a delegation agreement. Finally, the rulemaking was not developed solely under the general powers of the agency; but as a result of the repeal of TWC, §26.0285. Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed rules do not constitute a major environmental rule, a regulatory impact analysis is not required.

The commission invites public comment on the Draft Regulatory Impact Analysis Determination. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Takings Impact Assessment

The commission performed an assessment of these rules in accordance with Texas Government Code, §2007.043. The specific purpose of the rulemaking is to clarify when river basin reports are submitted given the repeal of TWC, §26.0285, previously referenced to identify when reports should be submitted for their respective river basin cycle. Amendment of these rules will constitute neither a statutory nor a constitutional taking of private real property. This rulemaking will impose no burdens on private real property because the proposed rule neither relates to, nor has any impact on the use or enjoyment of private real property, and there is no reduction in value of the property as a result of this rulemaking.

Consistency with the Coastal Management Program

The commission reviewed the proposed 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 proposed rules are not subject to the Texas Coastal Management Program.

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Announcement of Hearing

The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802 or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible.

Submittal of Comments

Written comments may be submitted to Derek Baxter, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www1.tceq.texas.gov/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2017-025-305-OW. The comment period closes on December 18, 2017. Copies of the proposed rulemaking can be obtained from the commission's website at http://www.tceq.texas.gov/rules/propose_adopt.html. For further information, please contact Jill Csekitz, Water Quality Planning Division, (512) 239-3136.

Statutory Authority

The amendments are proposed under Texas Water Code (TWC), §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the TWC and other laws of the state.

The amendments implement House Bill 3618, 85th Texas Legislature, 2017, which repealed TWC, §26.0285.

§220.4.Responsibilities of River Authorities and Designated Local Governments.

(a) Each river authority and designated local government that has entered into an agreement with the commission to perform duties under this chapter shall:

(1) Organize [organize] and lead a basin-wide steering committee to assist with the development of water quality objectives and priorities for the basin and to fulfill responsibilities described in §220.5 of this title (relating Responsibilities of Steering Committees). Membership of the committee will reflect a diversity of interests in the basin and will include persons paying fees described under Chapter 21 of this title (relating to Water Quality Fees), the Texas State Soil and Water Conservation Board and other appropriate state agencies (for example, Texas Parks and Wildlife Department, Texas Water Development Board, Texas General Land Office, Texas Department of Health, Texas Department of Agriculture, Texas Railroad Commission, and the Texas Department of Transportation), private citizens, representatives from political subdivisions, and other persons with an interest in water quality matters in the watershed or river basin.[;]

(2) Develop [develop] and maintain a basin-wide water quality monitoring program that eliminates duplicative monitoring, facilitates the assessment process to identify problem areas and support long-term trend analyses, and targets monitoring to support the wastewater discharge permitting and standards process.

(A) A quality assurance project plan must be developed and approved to support all data collection activities. Data collected by subcontractors and others under this program must conform to the approved quality assurance project plans.

(B) The water quality monitoring program shall address collection of baseline water quality data to support trend analyses and development of the statewide water quality inventory required under federal Clean Water Act, §305(b).

(C) The water quality monitoring program shall include site-specific data collection to support the wastewater discharge permitting process for fee payers in the basin. [Data collection efforts for this aspect of the program should be coordinated with the permitting cycle developed in accordance with Texas Water Code, §26.0285 (relating to permitting by basin).]

(D) The water quality monitoring program shall include watershed specific data collection to address priority water quality problem areas identified by river authority trends analyses or steering committee input.

(3) Establish [establish] and maintain a watershed and river basin water quality database and/or clearinghouse composed of quality-assured data, river authority programs, wastewater discharge permit holders, state and federal agencies, and other relevant data sources. This data shall be submitted to the commission for inclusion in the State of Texas Surface Water Quality Monitoring database and shall be made available to any interested person.

(A) Each river authority and designated local government shall establish and maintain the technology to aid in the electronic dissemination of water quality data and information for their basin. Water quality data for the basin shall be submitted to the commission at a minimum of once every six months in an agreed format for inclusion in the statewide water quality database.

(B) River authorities and designated local governments shall participate in task force meetings to establish, review, and update data management procedures to reflect changes in information management technology.

(4) Identify [identify] water quality problems and known pollution sources and set priorities for taking appropriate actions to eliminate those problems and sources.

(A) Each river authority shall utilize the commission's procedures for data evaluation and analyses to the maximum extent possible. If alternative evaluation processes are necessary, the procedure must be presented in writing to the commission for approval by the executive director prior to its application.

(B) In order to assure inclusion in the development of the statewide water quality inventory, the analytical procedures shall be comparable to those used by the commission.

(C) Steering committees shall be provided the opportunity to actively participate in the identification of priority problem areas and the development of appropriate actions to address the problems and pollutant sources. Steering committees shall have the opportunity to determine the priority of maintaining or protecting watersheds with existing good quality water.

(5) Develop [develop] a process for public participation that includes the basin steering committee and that provides for meaningful review and comments by private citizens and organizations in the local watersheds.[;]

(6) Recommend [recommend] water quality management strategies for correcting identified water quality problems and pollution sources.[;]

(7) Develop [develop] work plans which include priorities of the state and regional water quality management program. Upon agreement between the commission, the river authority, and/or designated local government, the provisions of the work plan become the scope of work of the program contract or cooperative agreement.

(b) Each local government or other agency that collects water quality data within the watershed shall cooperate with the river authority or designated local government in developing the basin monitoring plan and assessment by providing to the river authority all of the information available to that organization about water quality within its jurisdiction, including the extraterritorial jurisdiction of a municipality. Data collected by local governments must be consistent with an approved quality assurance plan to be included for wastewater discharge permitting and standards decisions.

(c) Monitoring and assessment is a continuing duty and shall be revised periodically with appropriate amendments and updates to the quality assurance plans to reflect changes in procedures and factors subject to the assessment.

§220.6.Reporting Requirements.

(a) Summary reports. Once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance, as amended, [In the appropriate year of the permitting cycle developed in accordance with Texas Water Code, §26.0285 (30 TAC §305.71) relating to Basin Permitting,] each river authority will submit a written summary report to the commission, the State Soil and Water Conservation Board, and Texas Parks and Wildlife Department on the water quality of the watershed or river basin.

(1) The summary report must identify concerns relating to the watershed or bodies of water, including an identification of bodies of water with impaired or potentially impaired uses, the cause and possible source or use impairment, and recommended actions that may be taken to address those concerns.

(2) The summary report must discuss the public benefits from the water quality monitoring and assessment program, including efforts to increase public input in activities related to water quality and the effectiveness of targeted monitoring in assisting the permitting process.

(3) Prior to submittal of the report to the agencies listed in subsection (a) of this section, the river authority will present the report to the basin steering committee for approval and will also make the report available to water right holder and wastewater permit holders for review and comment.

(4) All comments regarding satisfaction with or suggestions for modification of the report for the watershed, the operation and/or effectiveness of the monitoring and assessment program, and the use of funds shall be considered, summarized, and submitted, along with the approved summary report, to the governor, the lieutenant governor, and the speaker of the house of representatives not later than 90 days after submission to the commission and other agencies listed in paragraphs (1) - (3) of this subsection.

(b) Basin highlight reports. Each river authority and designated local government will develop a basin highlight report annually to be provided to each member of the basin steering committee and all fee payers within the basin. This report should summarize Texas Clean Rivers Program activities conducted in the basin. Procedures for electronic distribution should be developed to ensure most efficient availability to the public.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 3, 2017.

TRD-201704444

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 17, 2017

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


CHAPTER 305. CONSOLIDATED PERMITS

SUBCHAPTER D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS

30 TAC §305.71

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes the repeal of §305.71.

Background and Summary of the Factual Basis for the Proposed Rule

House Bill 3618 (HB 3618 or bill), 85th Texas Legislature (2017), repealed Texas Water Code (TWC), §26.0285 which required, to the greatest extent practicable, that all Texas Pollutant Discharge Elimination System (TPDES) permits within a single watershed contain the same expiration date (known as basin permitting). The bill also amended TWC, §26.0135(d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, §26.0285.

TWC, §26.0135 was created by the 72nd Texas Legislature (1991). Also known as "the Texas Clean Rivers Act," the legislation provided a framework for river authorities and TCEQ's predecessor agency to establish a public input process, strategic monitoring, and the periodic assessment of water quality within each river basin of the state. Since 1991, river authorities and other partners in TCEQ's Clean Rivers Program have continued to provide surface water quality monitoring and assessments of waterbodies in Texas' river basins. TCEQ uses this information in water quality management programs such as the Texas Integrated Report of Surface Water Quality, the Texas Surface Water Quality Standards, total maximum daily loads, watershed protection plans, and wastewater permitting.

TWC, §26.0285 was created by the 75th Texas Legislature (1997) to create the basin permitting program. State and federal rules allow permits to be issued for five-year terms. In order to comply with basin permitting rules, a substantial number of TPDES permits were required to be issued for terms between two and four years.

This rulemaking will implement HB 3618 changes related to TWC, §26.0285. In a corresponding rulemaking, published in this issue of the Texas Register, the commission also proposes amendments to 30 TAC §220.4, Responsibilities of River Authorities and Designated Local Governments, and §220.6, Reporting Requirements, to implement HB 3618 changes to TWC, §26.0135(d).

Section Discussion

§305.71, Basin Permitting

The proposed rulemaking would implement HB 3618 by repealing §305.71, which requires basin permitting for wastewater discharges. Repealing §305.71 will allow TPDES permits to be issued for five-year terms, as allowed by §305.127(1)(C)(i).

Fiscal Note: Costs to State and Local Government

Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rulemaking is in effect, fiscal implications are anticipated for the agency which may be significant, and no fiscal implications are expected for units of state or local government unless they have been applicants for wastewater discharge permits for terms between two and four years to correspond to a river basin cycle. Those that currently apply for such permits may experience cost savings as a result of the administration or enforcement of the proposal.

The proposed rulemaking would implement HB 3618. HB 3618 repealed TWC, §26.0285 which required, to the greatest extent practicable, that all TPDES permits within a single watershed contain the same expiration date (known as basin permitting). The proposed rulemaking implements these changes by repealing §305.71.

Federal rules allow TPDES permits to be issued for five-year terms. However, current agency Basin Permitting rules require a significant number of wastewater discharge permits to be issued for terms between two and four years to correspond to a river basin/segment cycle. Permit amendments are often sought by permittees during the permit term and often result in the amended permit being re-issued "off cycle". It typically requires two-permit terms to sync a permit which is "off cycle" to expire on its designated basin expiration date. Likewise, new permits must be set to expire on the basin expiration date. Repealing §305.71 will allow wastewater discharge permits to be issued for five-year terms.

The proposed rulemaking is expected to reduce workload for the TCEQ's Water Quality Division staff because over time, fewer wastewater discharge permits will be processed and issued. The proposed timing of the expiration of the permits reduces the frequency of reviewing and processing permit applications. Over the past five years, 1,553 permits were issued with a reduced (less than five-year) permit term. This averages to approximately 310 permits that were issued each year with a reduced permit term. The reduced workload will allow resources to be reallocated to other agency water program priorities and therefore any cost savings are not expected to be significant.

The proposed rulemaking will reduce the number of permit applications submitted to the agency and therefore the associated permit application fees that are received by the agency and deposited to the Water Resource Management Account 153. Permit application fees range from $350 to $2,050 each, depending on factors such as effluent flow volume and the United States Environmental Protection Agency (EPA) facility classification. TCEQ databases do not store the application fee for each application received, so staff cannot provide an exact number for the decrease in revenue. If, on average, approximately 310 permits were issued each year with a reduced permit term then revenue losses could be estimated to be between $108,500 and $635,500 each year. Depending upon future water program obligations and appropriations from Account 153, this loss in revenue may be significant.

State agencies that apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date may experience cost savings by allowing these permits to be issued for a five-year term. Approximately 20 reduced term permits were issued to state agencies over the past five years.

Local government entities (such as cities, counties, school districts, and utility districts) that apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date are affected by the proposed rulemaking. Over the past five years, approximately 804 reduced term permits were issued to local governments. Affected local governments are likely to experience cost savings similar to affected state agencies.

Affected state and local governments may experience cost savings due to the proposed change for wastewater discharge permits to be issued for five-year terms. The commission estimates that wastewater discharge permit application preparation costs range from $7,000 to $30,000. For each wastewater permit application submitted to TCEQ, applicants will pay application preparation costs, application fees (between $350 and $2,050 each, depending on factors such as effluent flow volume and EPA facility classification), and costs for the publication of public notices. Newspaper publication costs are estimated to range from $500 to $8,800. Exact cost savings are difficult to estimate due to the complexities of applications and site specific criteria for each permit.

Public Benefits and Costs

Ms. Montalvo also determined that for each year of the first five years the proposed rulemaking is in effect, the public benefit anticipated from the changes seen in the proposed rulemaking will be more efficient and cost effective administration of wastewater discharge permits.

The proposed rulemaking will have fiscal implications only for those businesses and individuals that reduce the submittal frequency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms. Approximately 592 businesses and 29 individuals were issued a reduced term permit, over the past five years. Depending on the specific factors surrounding each permit, the cost savings may or may not be significant.

These affected businesses and individuals are likely to experience cost savings. The commission estimates that wastewater discharge permit application preparation costs range from $7,000 to $30,000. For each wastewater permit application submitted to TCEQ, applicants will pay application preparation costs, application fees (between $350 and $2,050 each, depending on factors such as effluent flow volume and EPA facility classification), and costs for the publication of public notices. Newspaper publication costs are estimated to range from $500 to $8,800. Exact cost savings are difficult to estimate due to the complexities of applications and site specific criteria for each permit.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rules for the first five-year period the proposed rules are in effect. Approximately 179 small businesses and 119 micro-businesses were issued a reduced term permit, over the past five years. These affected small and micro-businesses are likely to experience cost savings if they reduce the submittal frequency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms. The cost savings for small and micro-businesses is expected to be the same as those savings for larger businesses.

Small Business Regulatory Flexibility Analysis

The commission reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not necessary because the proposed rulemaking will not adversely affect small or micro-businesses for the first five-year period the proposal is in effect and the proposed rulemaking is required by state law.

Local Employment Impact Statement

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rulemaking does not adversely affect a local economy in a material way for the first five-year period that the proposal is in effect.

Rural Communities Impact Assessment

The commission reviewed this proposed rulemaking and determined that the proposal does not adversely affect a rural community in a material way for the first five-year period that the proposed rulemaking is in effect. These state-wide rules will not affect rural communities or non-rural communities differently in any way. The proposed rulemaking is expected to result in cost savings for affected rural communities who reduce the submittal frequency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms.

Government Growth Impact Assessment

The commission prepared a Government Growth Impact Statement Assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency (although there is a decrease in the frequency of the wastewater discharge permit application fee for some entities); create a new regulation; nor increase or decrease the number of individuals subject to the rule's applicability.

During the first five years that the proposal would be in effect, it is not anticipated that there will be an adverse impact on the state's economy. Entities who apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date may experience cost savings by allowing these permits to be issued for a five-year term.

Draft Regulatory Impact Analysis Determination

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking 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. "Major environmental rule" is defined as 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. This 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.

This rulemaking will repeal a rule that required wastewater discharge permits be issued on its respective river basin cycle. This rule resulted in TPDES permits often being issued for less than five years duration, which is the maximum permit term allowed under the TPDES program. This change is proposed because the 85th Texas Legislature repealed TWC, §26.0285, which required wastewater discharge permit terms, to the greatest extent practicable, to correspond with their respective river basin cycle. Repeal of this rule will allow TCEQ to issue TPDES wastewater discharge permits for full five-year terms, which will result in overall less processing time for these types of permits by TCEQ and less frequent renewals by permittees. The rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Therefore, the commission finds that this rulemaking is not a "major environmental rule."

Furthermore, the rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 only applies to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopts a rule solely under the general powers of the agency instead of under a specific state law.

Specifically, the rulemaking does not exceed federal standards because no applicable federal standards exist regarding river basin permitting. Also, the rulemaking does not exceed an express requirement of state law nor exceed a requirement of a delegation agreement. The memorandum of agreement between EPA and TCEQ regarding delegation of the National Pollutant Discharge Elimination System program allows wastewater discharge permits to be issued in accordance with the river basin cycle or a five-year renewal cycle. Finally, the rulemaking was not developed solely under the general powers of the agency; but as a result of the repeal of TWC, §26.0285. Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed rules do not constitute a major environmental rule, a regulatory impact analysis is not required.

The commission invites public comment on the Draft Regulatory Impact Analysis Determination. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this.

Takings Impact Assessment

The commission performed an assessment of this rule in accordance with Texas Government Code, §2007.043. The specific purpose of the rulemaking is to repeal the rule that requires wastewater discharge permits to be issued in conjunction with their respective basin cycle. Repeal of this rule will constitute neither a statutory nor a constitutional taking of private real property. This rulemaking will impose no burdens on private real property because the proposed rule neither relates to, nor has any impact on the use or enjoyment of private real property, and there is no reduction in value of the property as a result of this rulemaking.

Consistency with the Coastal Management Program

The commission reviewed the proposed rulemaking and found that it 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, it must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the proposed rulemaking in accordance with Coastal Coordination Act Implementation Rules at 31 TAC §505.22 and found the proposed rulemaking is consistent with the applicable CMP goals and policies.

CMP goals applicable to the proposed rulemaking includes: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas and to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone.

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

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Announcement of Hearing

The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802 or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible.

Submittal of Comments

Written comments may be submitted to Derek Baxter, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www1.tceq.texas.gov/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2017-025-305-OW. The comment period closes on December 18, 2017. Copies of the proposed rulemaking can be obtained from the commission's website at http://www.tceq.texas.gov/rules/propose_adopt.html. For further information, please contact Laurie Fleet, Wastewater Permitting Section, at (512) 239-5445.

Statutory Authority

This repeal is proposed under Texas Water Code (TWC), §5.103 and §5.105, which provide the commission with the authority to adopt rules necessary to carry out the powers and duties under the TWC and other laws of the state.

The proposed repeal implements House Bill 3618, 85th Texas Legislature, 2017, which repealed TWC, §26.0285.

§305.71.Basin Permitting.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 3, 2017.

TRD-201704446

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 17, 2017

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


CHAPTER 336. RADIOACTIVE SUBSTANCE RULES

SUBCHAPTER B. RADIOACTIVE SUBSTANCE FEES

30 TAC §336.103

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes an amendment to §336.103.

Background and Summary of the Factual Basis for the Proposed Rule

House Bill 2662 (HB 2662 or bill), 85th Texas Legislature, 2017, repeals the 5% gross receipts fee on all compact and federal waste disposal for the biennium beginning September 1, 2017. The 5% fee is deposited into the State's General Revenue. In Fiscal Years (FYs) 2015 and 2016, the agency collected $4.3 million in revenue from the 5% surcharge. The revenue is anticipated to return to the current level once the fee is re-established on September 1, 2019. The bill was effective immediately.

Section Discussion

The commission proposes an amendment to remove the 5% gross receipts fee in §336.103(f). Subsection (f) is proposed to be removed and subsection (g) is proposed to be re-lettered accordingly.

Fiscal Note: Costs to State and Local Government

Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rule is in effect, no significant fiscal implications are anticipated for the agency and no fiscal implications are expected for units of local government as a result of the administration or enforcement of the proposed rule. Fiscal implications are anticipated for the State of Texas as there would be a two-year loss of revenue for the General Revenue Account which is used to fund state government operations. These fiscal implications are not expected to be significant.

The proposed rule would implement portions of HB 2662. HB 2662 repeals the 5% gross receipts fee on all compact and federal waste disposed at the Texas Low Level Radioactive Waste facility for the biennium beginning September 1, 2017. HB 2662 reinstates the 5% gross receipts fee beginning September 1, 2019. Revenue from the 5% gross receipts fee has been deposited into the state's General Revenue Fund. For FYs 2015 and 2016, the agency collected and deposited to the General Revenue Fund approximately $4.3 million (approximately $2.15 million each year) in revenue from the 5% surcharge. The revenue is anticipated to return to this level again once the fee is re-established on September 1, 2019.

Public Benefits and Costs

Ms. Montalvo also determined that, for each year of the first five years the proposed rule is in effect, the public benefit anticipated from the changes in the proposed rule will be compliance with state law.

No fiscal implications are anticipated for individuals as a result of the implementation or administration of the proposed rule. The proposed rule is expected to result in cost savings for party state and nonparty state compact as well as federal waste generators who use the Texas Low Level Radioactive Waste facility for disposal. Cost savings could be expected for generators located both inside and outside the State of Texas. These generators will see a reduction in fees assessed to them for the disposal of low-level radioactive waste totaling approximately $2.1 million each year until September 1, 2019. The fee reduction may result in attracting more waste generators to use the facility for waste disposal.

Local Employment Impact Statement

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

Rural Communities Impact Assessment

The commission reviewed this proposed rulemaking and determined that a rural community impact statement is not required because the proposed rule does not adversely affect a rural community in a material way for the first five years that the proposed rule is in effect.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rule for the first five-year period the proposed rule is in effect. The proposed rule is expected to result in cost savings for compact and federal waste generators who use the Texas Low Level Radioactive Waste facility for disposal. None of these generators are thought to be small or micro-businesses, but if they are, these generators will see a reduction in fees for the disposal of low-level waste at the compact facility until September 1, 2019.

Small Business Regulatory Flexibility Analysis

The commission reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rule does not adversely affect small or micro-businesses for the first five-year period the proposed rule is in effect and is required by state law.

Government Growth Impact Statement

The commission reviewed this proposed rulemaking and determined that a Government Growth Impact Statement Assessment is not required because the proposed rule is required by state law.

Draft Regulatory Impact Analysis Determination

The commission proposes the rulemaking action under 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 the statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendment to Chapter 336 is not anticipated to 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, because these revisions are required for TCEQ to comply with legislation requiring a two-year suspension of this fee for the biennium beginning September 1, 2017.

Furthermore, the proposed rulemaking action does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, only applies 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. The proposed rulemaking action does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor does it adopt a rule solely under the general powers of the agency.

Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Takings Impact Assessment

The commission evaluated this proposed rulemaking and performed a preliminary assessment of whether the proposed rulemaking constitutes a taking under the Private Real Property Rights Preservation Act, Texas Government Code, Chapter 2007. The proposed rule does not affect a landowner's rights in private real property because this rulemaking action does not constitutionally burden, restrict, or limit the owner's right to property nor reduce the value of an owner's property by 25% or more. Therefore, promulgation and enforcement of this proposed rulemaking would be neither a statutory nor a constitutional taking of private real property in accordance with Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble.

Announcement of Hearing

The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 10:00 a.m., in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle in Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802 or 800) RELAY-TX (TDD). Requests should be made as far in advance as possible.

Submittal of Comments

Written comments may be submitted to Ms. Kris Hogan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www1.tceq.texas.gov/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2017-032-336-WS. The comment period closes on December 22, 2017. Copies of the proposed rulemaking can be obtained from the commission's website at http://www.tceq.texas.gov/rules/propose_adopt.html. For further information, please contact Hans Weger, Radioactive Materials Unit, (512) 239-6465.

Statutory Authority

The amendment is proposed under the Texas Radiation Control Act, Texas Health and Safety Code (THSC), Chapter 401; THSC, §401.011, which provides the commission authority to regulate and license the disposal of radioactive substances; THSC, §401.051, which provides for the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, §401.103(b), which requires the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, §401.104, which provides for general and specific licensing by rule with a few exceptions; THSC, §401.201, which requires the commission to directly regulate the disposal of low-level radioactive waste; and THSC, §401.2445, which requires a disposal facility license holder to transfer a percentage of gross receipts to the state general revenue fund. The proposed rule is also authorized by Texas Water Code (TWC), §5.103 which provides the commission with the authority to adopt rules necessary to carry out its power and duties under the TWC and other laws of the state.

The proposed amendment will implement House Bill 2662, 85th Texas Legislature, 2017, which removes the 5% gross receipts fee on all compact and federal waste disposal for the biennium beginning September 1, 2017.

§336.103.Schedule of Fees for Subchapter H Licenses.

(a) An application for a low-level radioactive waste disposal site license under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be accompanied by a nonrefundable application processing fee of $500,000. If the commission's costs in processing an application under Subchapter H of this chapter exceed the $500,000 application processing fee, the commission may assess and collect additional fees from the applicant to recover the costs. Recoverable costs include costs incurred by the commission for administrative review, technical review, and hearings associated with the application.

(b) An applicant shall submit an annual fee for the actual costs incurred by the commission for hearings associated with an application for a low-level radioactive waste disposal site under Subchapter H of this chapter. The executive director shall send an invoice for the amount of the costs incurred during the period September 1 through August 31 of each year. Payment shall be made within 30 days following the date of the invoice.

(c) A holder of a license for a low-level radioactive waste disposal site issued under Subchapter H of this chapter shall submit an annual license fee for the services received. This fee shall recover for the state the actual expenses arising from the regulatory activities associated with the license. This fee shall include reimbursement for the salary and other expenses of the resident inspectors as provided by §336.743 of this title (relating to Resident Inspector). The executive director shall invoice for the amount of the costs incurred. Payment shall be made within 30 days following the date of the invoice.

(d) An application for a major amendment of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $50,000.

(e) An application for renewal of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $300,000.

[(f) The compact waste disposal facility license holder shall remit to the commission 5% of the gross receipts from compact waste received at the compact waste disposal facility and any federal facility waste received at the federal facility waste disposal facility. Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August.]

(f) [(g)] The compact waste disposal facility license holder shall remit directly to the host county 5% of the gross receipts from compact waste received at the compact waste disposal facility and any federal facility waste received at the federal facility waste disposal facility as required in Texas Health and Safety Code, §401.244. Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 3, 2017.

TRD-201704453

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 17, 2017

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