PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 5. ADVISORY COMMITTEES AND GROUPS
SUBCHAPTER B. ADVISORY COMMITTEES
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §5.3; and new §5.15.
Amended §5.3 and new §5.15 are adopted without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 298) and, therefore, will not be republished.
Background and Summary of the Factual Basis for the Adopted Rules
This rulemaking adoption implements the requirements of Texas Government Code, Chapter 2110 with respect to establishing in rule the date on which an advisory committee is abolished.
During Sunset review, Sunset Commission staff recommended that the agency renew advisory committees created by the commission through a rulemaking process. Texas Government Code, §2110.008 provides that an advisory committee is automatically abolished on the fourth anniversary date of its creation unless the state agency has established, by rule, a different date on which the advisory committee will automatically be abolished. In consideration of the Sunset review recommendation, the commission determined that seven advisory committees that do not have dates for abolishment currently established in statute or rule should continue in existence because they continue to serve the purpose of providing advice to the agency. This rulemaking will continue the existence of those seven advisory committees: the Water Utility Operator Licensing Advisory Committee, the Municipal Solid Waste Management and Resource Recovery Advisory Council, the Irrigator Advisory Council, the Concho River Watermaster Advisory Committee, the Rio Grande Watermaster Advisory Committee, the South Texas Watermaster Advisory Committee, and the Brazos Watermaster Advisory Committee. The rule specifies December 31, 2032, as the date of abolishment for these advisory committees. Advisory committees that are subject to a statutory duration or excluded from the applicability of Texas Government Code, Chapter 2110 are not included in this rule.
Section by Section Discussion
The commission adopts the amendment to §5.3 providing that advisory committees created by the commission are to be automatically abolished according to the requirements of Texas Government Code, §2110.008 unless the advisory committee is required to remain in effect without abolishment under a state or federal law, or a different date for abolishment is established under §5.15. An advisory committee that is subject to a requirement under a state or federal law to remain in effect without abolishment or an advisory committee that is not subject to Texas Government Code, §2110.008 is not subject to abolishment under §5.3 or §5.15.
The commission adopts new §5.15 to establish the duration of advisory committees under subchapter B. New subsection (a) provides that the advisory committees listed in subsection (b) are renewed and continue to exist with the abolishment date established for the listed advisory committee. New subsection (b) establishes an abolishment date of December 31, 2032, for the following advisory committees: the Water Utility Operator Licensing Advisory Committee, the Municipal Solid Waste Management and Resource Recovery Advisory Council, the Irrigator Advisory Council, the Concho River Watermaster Advisory Committee, the Rio Grande Watermaster Advisory Committee, the South Texas Watermaster Advisory Committee, and the Brazos Watermaster Advisory Committee. The commission expects that future rulemaking may add to the list of advisory committees or amend the date of abolishment for any advisory committee.
Final Regulatory Impact Determination
The commission reviewed the rulemaking adoption in light of the regulatory analysis
requirements of the 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 rulemaking adoption is not a major environmental rule because it is not anticipated to adversely effect 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 since the rulemaking adoption addresses procedural requirements for the abolishment of advisory committees. Likewise, there will be no adverse effect in a material way 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 from the revisions because the changes are not substantive. The rulemaking addresses procedural requirements for establishing the dates on which listed advisory committees are to be abolished.
Texas Government Code, §2001.0225, 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 authority of the commission. The rulemaking adoption does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225.
First, the rulemaking does not exceed a standard set by federal law because the commission is adopting this rulemaking to continue advisory committees and establish the dates on which the advisory committees will be abolished. There are no standards set by federal law that are exceeded by the adopted rules.
Second, the rulemaking adoption does not exceed a requirement of state law because Texas Government Code Chapter 2110 authorizes a state agency to establish, by rule, the date on which an advisory committee is to be abolished.
Third, the rulemaking does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government, where the delegation agreement or contract is to implement a state and federal program. There is no applicable delegation agreement or contract addressing the duration requirements for advisory committees.
And fourth, this rulemaking does not seek to adopt a rule solely under the general powers of the agency. Rather, this rulemaking is authorized by Texas Water Code, §5.103 which provides specific authority to adopt rules and §5.107 which authorizes the commission to create advisory committees.
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
The commission evaluated the rulemaking adoption and performed analysis of whether the adopted rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rules is to continue the existence of listed advisory committees and establish the date on which the advisory committees are to be abolished. The rulemaking adoption substantially advances these stated purposes by adopting rules that continue the existence of the Water Utility Operator Licensing Advisory Committee, the Municipal Solid Waste Management and Resource Recovery Advisory Council, the Irrigator Advisory Council, the Concho River Watermaster Advisory Committee, the Rio Grande Watermaster Advisory Committee, the South Texas Watermaster Advisory Committee, and the Brazos Watermaster Advisory Committee and establish the date of December 31, 2032, on which these committees will be abolished.
The commission's analysis indicates that the adopted rules will 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 real property because the adopted rulemaking does not burden (constitutionally); nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. The adopted rules are procedural, addressing the requirements for advisory committees, and do not affect real property.
Consistency with the Coastal Management Program
The commission reviewed the adopted rules and found that they are neither identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Texas Coastal Management Program.
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received regarding the coastal management program.
Public Comment
The commission offered/held a public hearing on February 27, 2023. The comment period closed on February 28, 2023. The commission received comments from Harris County Pollution Control Service (HCPCS).
Response to Comments
Comment
HCPCS commented that it recommends that the Texas Health & Safety Code, Texas Government Code and the proposed rule change process be reevaluated to better conform with the Sunset Commission's concerns or recommendations.
Response
The commission's rulemaking to renew the advisory committees by rule and establish dates for abolishment in rule for the advisory committees was intended to address only a part of the Sunset Advisory Commission Staff Report with Commission Decisions, Management Action recommendation 1.6 (Sunset Commission Staff Report recommendation), the recommendation that TCEQ extend advisory committees by rule. This rulemaking was not intended to fulfill the entirety of the recommendation that directed the agency to evaluate the use of advisory committees to provide more public involvement in rulemaking and other decision-making processes. Other approaches to encourage public participation in agency decision-making include provisions of the Sunset legislation (House Bill 1505 and Senate Bill 1397, 88th Legislature, 2023), and agency rule and guidance changes that address public meetings, public notice, contested case hearings, and the availability of information on TCEQ's public website.
Comment
HCPCS commented that the proposal to establish dates of abolishment for seven advisory committees does not address the "atmosphere of distrust" identified by the Sunset Commission or adhere to their recommendation for "correctly extending advisory committees and not inadvertently letting them be abolished by function of law."
Response
The commission's rulemaking to renew the advisory committees by rule and establish dates for abolishment in rule for the advisory committees was intended to address only a part of the Sunset Commission Staff Report recommendation, the recommendation that TCEQ extend advisory committees by rule. This rulemaking was not intended to fulfill the entirety of the recommendation that sought to encourage public participation in agency decision-making. The commission does consider that the adopted amendment to §5.3 and new §5.15 appropriately renews the advisory committees by rule and establishes a date of abolishment in rule so that the advisory committees are not abolished by operation of Texas Government Code, §2110.008, conforming to the Sunset Commission Staff Report recommendation.
Comment
HCPCS commented that the proposed rule change in the future could potentially result in the advisory committees being inadvertently abolished.
Response
The adoption of new §5.15 establishes dates of abolishment for the listed advisory committees so that the advisory committees are not abolished by operation of Texas Government Code, §2110.008. Establishing the date of abolishment in rule is intended to prevent inadvertent abolishment.
Comment
HCPCS commented that using dates of abolishment, where the advisory committee must be renewed by rule, is a potential burden to the public, who may not understand how to navigate the rules process to extend the advisory committee's existence.
Response
The Commission determined that rulemaking was necessary to implement the Sunset Commission Staff Report recommendation. The adoption of new §5.15 renews the seven listed advisory committees by rule as recommended by the Sunset Commission Staff Report and establishes dates of abolishment in rule so that advisory committees are not abolished by operation of Texas Government Code, §2110.008.
Comment
HCPCS commented that the rule change process does not address the Sunset Commission's concern or recommendation of correctly extending the advisory committee.
Response
The commission determined that rulemaking was necessary to implement the Sunset Commission staff report recommendation for extending advisory committees. The adoption of new §5.15 renews the seven listed advisory committees by rule as recommended by the Sunset Commission Staff Report.
Statutory Authority
The amendment and new rule are adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by the TWC; and TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state. The amendments are also adopted under Texas Health and Safety Code (THSC), §361.017, which provides the commission authority to manage industrial solid waste and hazardous municipal waste; and THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste.
The adopted amendment and new rule implement TWC, §5.107 and Texas Government Code, Chapter 2110.
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 June 16, 2023.
TRD-202302169
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 6, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 239-2678
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§285.2, 285.3, 285.7, 285.32-285.34, 285.38, 285.64, and 285.91.
Amended §§285.2, 285.3, 285.7, 285.32 - 285.34, 285.38, and 285.64 are adopted without changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8898).These rules will not be republished. Amended §285.91 is adopted with changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8898) and, therefore, will be republished.
Background and Summary of the Factual Basis for the Adopted Rules
On November 12, 2020, the Texas On-Site Wastewater Association (TOWA) filed a petition for rulemaking. On April 5, 2021, B&J Wakefield Services, Inc. (Wakefield) filed a petition for rulemaking. On December 16, 2020, and May 19, 2021, respectively, the commission directed the executive director (ED) to initiate rulemaking after stakeholder involvement concerning the issues raised in the petitions. The petitions requested amendments to several sections, and the ED considered the changes recommended by TOWA and Wakefield. House Bill (HB) 1680 87th Legislature, 2021, allows leased portions of federal properties to be considered separately for the purposes of the implementation of 30 Texas Administrative Code (TAC) Chapter 285. HB 1680 does not require rulemaking; however, the ED has determined that implementing the bill language through rulemaking will clarify the requirements. This rulemaking will incorporate some, but not all, of the changes recommended by TOWA, none of the changes recommended by Wakefield, and the requirement regulating on-site sewage facilities (OSSFs) on certain leased land that is owned by the federal government. The adopted rules will update the definition of "direct communication" to ensure that, in addition to the installer and the installer's apprentice being able to communicate directly, the maintenance provider and the maintenance provider's technician will also be able to communicate directly. The updated definition will also allow any form of immediate communication rather than specifying "in person, by telephone, or by radio."
The adopted rules will clarify that: single family dwellings located on a tract of land that is ten acres or larger must adhere to all the requirements of Chapter 285 that are not specifically listed in the rule as exempt; all required tags must indicate the maintenance dates and maintenance provider information must be located outside the motor cover, control panel, or breaker box; "flows" are in reference to "hydraulic flows," and installers and owners can be parties in a contract with a maintenance provider.
The adopted rules will require risers to be installed over all inspection and cleanout ports, and all risers be at least two inches above grade. This requirement will be effective with permits issued on September 1, 2023, and later.
The adopted rules will update the language for timers used in dosing systems, and the requirement for purple fittings for reclaimed water systems.
The adopted rules will allow flexible conduit to be used in areas between the buried pipe and the control panels where rigid pipe is not feasible, with a limit of four feet of flexible conduit.
The adopted rules will clarify that the maintenance provider is contracted to provide maintenance on an OSSF. After the two-year period after installation, the homeowner is responsible for either contracting with the provider or is responsible for obtaining the necessary training to maintain the system themselves.
In addition to the above changes, the adopted rules will correct references and cross-references.
The adopted rules will implement HB 1680 by adding the requirement that if a tract of land owned by the federal government contains separately leased individual parts, each leased part is considered a separate tract of land.
Section by Section Discussion
§285.2, Definitions
The adopted rule will amend the definition of "direct communication" in §285.2(18) to include communication between the installer and the apprentice, and the maintenance provider and the maintenance technician. The adopted rule removes the examples of means of communication to reflect that the modernization of communication provides for better, more efficient communication.
§285.3, General Requirements
The adopted rule will amend §285.3(f)(2) to clarify that the 10-acre exception only applies to the requirements for planning materials, permits, or inspections at an OSSF at a single-family dwelling but does not allow exception from the planning, construction and installation standards as required by Chapter 285, Subchapter D. The current provision has been misinterpreted by homeowners, installers, authorized agents, and other stakeholders as meaning that single-family dwellings on 10 acres or more were exempt from the entirety of Chapter 285. This clarification will help authorized agents, homeowners, and installers better understand the regulatory requirements for large properties and correctly implement the rules, resulting in better protection of public health and the environment.
The adopted rule will also amend §285.3(f) to add paragraph (4) to incorporate the requirement from HB 1680 into the rule. The statute provides that "If a tract of land owned by the federal government contains separately leased individual parts, each leased part is considered a separate tract of land for purposes of this chapter, or a rule adopted under this chapter."
§285.7, Maintenance Requirements
The adopted rule to amend §285.7(e)(2) will clarify that the required weather resistant tag must be located outside of the motor cover, control panel, or breaker box. The adopted language will improve safety for homeowners as it will require easy access to the maintenance provider's contact information.
The adopted rule to amend §285.7(c) will correct the reference from "§285.7(d)(1)(A) - (E)" to "§285.7(d)(1)(A) - (F)." This correction is necessary as the provision "(F)" requires the business physical address and telephone number for the maintenance provider, which is important for the maintenance contract.
§285.32, Criteria for Sewage Treatment Systems
The adopted rule to amend §285.32(b)(1)(D) will require tank risers to be at least two inches above grade. Currently the risers on some OSSFs are installed at or below grade, which makes maintenance of the OSSF difficult. This change will allow easier access to the OSSF for maintenance. Additionally, requiring risers to be installed two inches above grade will help prevent the OSSF from being infiltrated with rainwater during rain events. This requirement will be effective with permits issued on September 1, 2023, and later.
The adopted rule to amend §285.32(c)(5)(A) will remove the descriptor for the initials "NSF". The reference to National Sanitation Foundation (NSF) is outdated.
The adopted rule to amend §285.32(d)(5) corrects the reference to read "§285.34(c)".
§285.33, Criteria for Effluent Disposal Systems
The adopted rule to amend §285.33(c)(4) corrects the reference to "§285.32(c)(5)" rather than "§285.32(c)(4)(B)".
The adopted rule to amend §285.33(d)(2)(D) will remove the descriptor for the initials "NSF." The reference to National Sanitation Foundation (NSF) is outdated.
The adopted rule to amend §285.33(d)(2)(G)(i) will remove the requirement that a commercial irrigation timer be used. Other timers that are readily available provide the same functionality and level of service.
The adopted rule to amend §285.33(d)(2)(G)(iii)(I) will remove the requirement that a commercial irrigation timer be used. Other commercially available products can provide the needed functionality and level of service.
The adopted rule to amend §285.33(d)(2)(G)(iii)(II) will remove the requirement that a commercial irrigation timer be used. Other commercially available products provide the needed functionality and level of service.
The adopted rule to amend §285.33(d)(2)(G)(v) will remove the requirement that fittings in distribution systems for reclaimed water systems be permanently colored purple. The use of purple pipe is to clearly distinguish piping used for wastewater from other pipes, however, purple fittings are not readily available and are more expensive. The use of non-purple fittings will not affect an individual's ability to distinguish piping used for wastewater from piping used for other purposes because the pipe is still required to be purple.
§285.34, Other Requirements
The adopted rule to amend §285.34(a) will remove the descriptor for the initials "NSF." The reference to National Sanitation Foundation (NSF) is outdated.
The adopted rule to amend §285.34(b)(3) will clarify the type of flow by adding the word "hydraulic" to the provision. By adding the word "hydraulic", the rules will clearly identify the referenced flows as those within the OSSF system (wastewater generated on the site where it is treated).
The adopted rule to amend §285.34(c) will allow up to four feet of electrical wiring that is not buried to be contained in water-tight flexible electric conduit, rather than in rigid pipe. Flexible conduit will provide sufficient safety measures to prevent infiltration or other exposures of the wiring to damage. The amended language is necessary to address wire protection in tight spaces, that are typically between the buried electrical wiring and the panel(s), that sometimes make configuring rigid conduit difficult.
§285.38, Prevention of Unauthorized Access to On-Site Sewage Facilities (OSSFs)
The adopted rule to amend §285.38(c) will require all inspection and cleanout ports to have risers that extend at least two inches above grade. This change eliminates the exception that the inspection and cleanout ports of septic tanks are not required to have risers. This change will allow easier access to the OSSF for maintenance and inspection. Additionally, requiring risers to be installed two inches above grade will help prevent the OSSF from being infiltrated with rainwater during rain events. This requirement will be effective with permits issued on September 1, 2023, and later.
The deletion of §285.38(d) is necessary to prevent ambiguity in the rules since §285.38(c) will no longer exempt septic tank inspection and cleanout ports from having risers.
The subsequent provisions were relabeled accordingly.
§285.64, Duties and Responsibilities of Maintenance Providers and Maintenance Technicians.
The adopted rule to amend §285.64(a)(5) will clarify that the maintenance provider is contracted to perform maintenance on an OSSF. The adopted change will remove the ambiguity in the rule that the installer is the only person that may contract with a maintenance provider to provide maintenance on an OSSF. After the end of the two-year period after installation, the homeowner is responsible for either contracting with a maintenance provider or obtaining the necessary training to maintain the OSSF system themselves.
§285.91, Tables.
The adopted rule to amend §285.91 (2) Table 2 addresses the minimum aerobic tank treatment capacity for one and two bedroom homes with less than 1501 square feet. This correction adds these homes to the table and resolves the questions that arise as a result of smaller homes not being addressed.
The adopted rule to amend §285.91 (10) Table 10 corrects the citation regarding wells completed in accordance with the rules in 16 TAC Chapter 76 to read "§76.100(b), 76.100(e), and 76.100(f). This correction is necessary as the current reference is incorrect.
The adopted rule to amend §285.91 (10) Table 10 updates the reference from the Ra value "less than" to read the Ra value "equal to" 0.1. This correction is necessary as the current reference is incorrect. As indicated in §285.91 (1) Table 1, no reference to an Ra value less than 0.1 is given; rather, an Ra value of equal to 0.1 is given.
The adopted rule to amend §285.91 (Table 10) (Footnote 6) updates the language for timers to remove the reference to "commercial irrigation" timers to align with the updated language that is adopted in §285.33(d)(2)(G)(i). This change will remove ambiguity in the amended rules.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to Texas Government Code, §2001.0225. Texas Government Code, §2001.0225 applies to a "Major environmental rule" which is defined in Texas Government Code, §2001.0225(g)(3) as a rule with a specific intent "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."
First, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The purpose of this rulemaking is to update the rules in 30 TAC 285 to make them current with industry standards and practices.
Second, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rules will not 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. It is not anticipated that the cost of complying with the adopted rules will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.
Finally, the adopted rulemaking does not meet any of the four applicability requirements for a "Major environmental rule" 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. This adopted rulemaking does not meet any of the four preceding applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for the regulation of OSSFs; 2) does not exceed any express requirements of state law related to the regulation of OSSFs; 3) does not 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; and 4) is not adopted solely under the general powers of the agency.
Since this adopted rulemaking does not meet the statutory definition of a "Major environmental rule" nor does it meet any of the four applicability requirements for a "Major environmental rule," this rulemaking is not subject to Texas Government Code, §2001.0225.
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
The commission evaluated this rulemaking and performed an analysis of whether the adopted rules will constitute a taking. Texas Government Code, §2007.002(5), defines a taking as either: 1) 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 Sections 17 or 19, Article I, Texas Constitution; or 2) a governmental action that 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 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 determined that the adopted rules will not constitute a taking as that term is defined under Texas Government Code, §2007.002(5). Specifically, the adopted rules will not affect any landowner's rights in private real property, and there are no burdens that will be imposed on private real property by the adopted rules.
Consistency with the Coastal Management Program
The ED 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 ED conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §29.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies. The applicable goals of the CMP are: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; and to balance these competing interests. The specific CMP policies applicable to these adopted amendments include clarifications in OSSF rules, updated language to be consistent with industry standards, require technical changes to provide easier access for maintenance of OSSFs, and implement House Bill 1680 which will allow separately leased individual parts of federal lands to be considered as separate tracts for the purposes of Chapter 285. In addition to these changes, several typographical errors and incorrect references within Chapter 285 will be corrected. Promulgation and enforcement of these adopted 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 adopted 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.
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.
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received regarding the CMP.
Public Comment
The commission offered a public hearing on January 30, 2023. The comment period closed on January 31, 2023, during which time one comment was received. The commenter was against including new requirements for risers in 30 TAC §285.38. The commenter also noted that the proposed reference in §285.91(10) was incorrect.
Response to Comments
Comment 1
An individual commented on the problems that might be created by increasing the required riser height to two inches above grade. The commenter's concerns include increased accessibility to the OSSF by unauthorized people, creating stumbling obstacles, and the difficulty of increasing riser heights on systems that are located in sidewalks, parking lots, in front of businesses, residences, and commercial operations.
Response 1
The commission appreciates the concern for safety that could be created by the proposed changes. Based on other stakeholder comments and TCEQ inspector experience, the benefits of requiring risers that extend above ground level outweigh the potential costs. Currently, the risers on some OSSFs are installed below grade, which can make maintenance of the OSSF difficult.
Two specific requirements in the current rule are meant to prevent unauthorized access. In the event that unauthorized persons remove the lid, the rules include provisions to prevent the person from falling or otherwise entering the tank. Specifically, the rules require: a riser secured with a padlock, a cover that can be removed with tools, a cover with a minimum weight of 65 pounds, or other means approved by the TCEQ Executive Director (30 TAC §285.38(c)(3)(A)); and a secondary plug, cap, or other suitable restraint system provided below the riser cap (30 TAC §285.38(c) and (30 TAC §285.38(d)).
The provision to require riser lids that extend to two inches above grade does not apply to systems that are already permitted. This provision will only apply to systems associated with new permits. New permits will not authorize construction of OSSFs in sidewalks, parking lots, or within certain distances of any other structures or site improvements (site improvements include any concrete that is laid on the ground surface for any reason). No changes have been made as a result of this comment.
Comment 2
An individual commented that raising the riser two inches above grade will not prevent infiltration into an OSSF but would rather make damage to the riser more likely, increasing the potential for infiltration. The commenter stated that the law already requires that risers to be water-tight and if they are not, they should be fixed.
Response 2
The commission recognizes that increasing the minimum height of risers might lead to additional damage to risers, and that risers are already required to be water-tight; however, based on other stakeholder comments and TCEQ inspector experience, increasing the riser height to two inches above ground level will reduce the potential for infiltration from rain and surface water. The benefits of not only preventing infiltration into the OSSF but also increasing accessibility for maintenance personnel outweigh the potential risk that additional damage may be done to elevated risers. No changes were made in response to this comment.
Comment 3
An individual commented that there was an error in the amendment to a reference in §285.91 (10).
Response 3
The proposed language in §285.91 (10) Table 10 incorrectly referenced 16 TAC §76.100(a)(1) whereas Table 10 should have referenced §76.100(b), §76.100(e), and §76.100(f). Changes were made to correct this reference.
SUBCHAPTER A. GENERAL PROVISIONS
Statutory Authority
These amendments are adopted under the authority granted to the commission in Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to conservation of natural resources and protection of the environment; TWC, §5.013, and THSC §366.011 which establishes the commission's authority over on-site sewage facilities; TWC, §5.103 and §5.105, which establish the commission's general authority to adopt rules. No other statutes, articles, or codes are affected by the adoption.
This rulemaking implements House Bill 1680, 87th Leg. (2021), codified as Texas Health and Safety Code, §366.006, which provides that certain tracts of land owned by the federal government that contain separately leased parts are considered as separate tracts of land for purposes of on-site sewage facilities permitting.
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 June 16, 2023.
TRD-202302170
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 6, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 239-2678
30 TAC §§285.32 - 285.34, 285.38
Statutory Authority
These amendments are adopted under the authority granted to the commission in Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to conservation of natural resources and protection of the environment; TWC, §5.013, which establishes the commission"s authority over on-site sewage facilities; TWC, §5.103 and §5.105, which establish the commission"s general authority to adopt rules. No other statutes, articles, or codes are affected by the adoption.
This rulemaking implements House Bill 1680 (87th legislative session), codified as Texas Health and Safety Code, §366.006, which provides that certain tracts of land owned by the federal government that contain separately leased parts is considered a separate tract of land for purposes of on-site sewage facilities permitting.
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 June 16, 2023.
TRD-202302171
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 6, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 239-2678
Statutory Authority
These amendments are adopted under the authority granted to the commission in Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to conservation of natural resources and protection of the environment; TWC, §5.013, which establishes the commission's authority over on-site sewage facilities; TWC, §5.103 and §5.105, which establish the commission's general authority to adopt rules. No other statutes, articles, or codes are affected by the adoption.
This rulemaking implements House Bill 1680 (87th Legislative Session), codified as Texas Health and Safety Code, §366.006, which provides that certain tracts of land owned by the federal government that contain separately leased parts is considered a separate tract of land for purposes of on-site sewage facilities permitting.
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 June 16, 2023.
TRD-202302172
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 6, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 239-2678
Statutory Authority
These amendments are adopted under the authority granted to the commission in Texas Water Code (TWC), §5.012, which provides that the commission is the agency responsible for implementing the constitution and laws of the state relating to conservation of natural resources and protection of the environment; TWC, §5.013, which establishes the commission's authority over on-site sewage facilities; TWC, §5.103 and §5.105, which establish the commission's general authority to adopt rules. No other statutes, articles, or codes are affected by the adoption.
This rulemaking implements House Bill 1680 (87th legislative session), codified as Texas Health and Safety Code, §366.006, which provides that certain tracts of land owned by the federal government that contain separately leased parts is considered a separate tract of land for purposes of on-site sewage facilities permitting.
§285.91.Tables.
The following tables are necessary for the proper location, planning, construction, and installation of an on-site sewage facility (OSSF).
(1) Table I. Effluent Loading Requirements Based on Soil Classification.
Figure: 30 TAC §285.91(1) (No change.)
(2) Table II. Septic Tank and Aerobic Treatment Unit Sizing.
Figure: 30 TAC §285.91(2) (.pdf)
(3) Table III. Wastewater Usage Rate.
Figure: 30 TAC §285.91(3) (No change.)
(4) Table IV. Required Testing and Reporting.
Figure: 30 TAC §285.91(4) (No change.)
(5) Table V. Criteria for Standard Subsurface Absorption Systems.
Figure: 30 TAC §285.91(5) (No change.)
(6) Table VI. USDA Soil Textural Classifications.
Figure: 30 TAC §285.91(6) (No change.)
(7) Table VII. Yearly Average Net Evaporation (Evaporation-Rainfall).
Figure: 30 TAC §285.91(7) (No change.)
(8) Table VIII. OSSF Excavation Length (3 Feet in Width or Less).
Figure: §30 TAC 285.91(8) (No change.)
(9) Table IX. OSSF System Designation.
Figure: 30 TAC §285.91(9) (No change.)
(10) Table X. Minimum Required Separation Distances for On-Site Sewage Facilities.
Figure: 30 TAC §285.91(10) (.pdf)
(11) Table XI. Intermittent Sand Filter Media Specifications (ASTM C-33).
Figure: 30 TAC §285.91(11) (No change.)
(12) Table XII. OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements.
Figure: 30 TAC §285.91(12) (No change.)
(13) Table XIII. Disposal and Treatment Selection Criteria.
Figure: 30 TAC §285.91(13) (No change.)
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 June 16, 2023.
TRD-202302173
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 6, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 239-2678