PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 35. EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS
SUBCHAPTER E. EMERGENCY ORDERS FOR UTILITIES
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts new §35.202 without changes to the proposed text as published in the October 16, 2020, issue of the Texas Register (45 TexReg 7393). The rule will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
The rulemaking adoption implements statutory changes made by House Bill (HB) 3542 and Senate Bill (SB) 700 of the 86th Texas Legislature, 2019.
SB 700 amends Texas Water Code (TWC), Chapters 5 and 13 to authorize the TCEQ to issue emergency orders with or without a hearing to compel a retail public utility to provide water and/or sewer service to ensure safe drinking water or environmental protection. Additionally, TCEQ can issue an emergency order to compel a retail public utility to provide an emergency interconnection for not more than 90 days if necessary to ensure safe drinking water or environmental protection. The legislation also amends TWC, Chapter 5 to allow the commission by order or rule to delegate to the executive director of the TCEQ the authority to receive applications, issue emergency orders under TWC, §13.041(h), and authorize in writing a representative or representatives to act on the executive director's behalf. SB 700 took effect on September 1, 2019.
Corresponding rulemaking is published in this issue of the Texas Register concerning 30 Texas Administrative Code (TAC) Chapter 291, Utility Regulations.
Section Discussion
In addition to the adopted revisions associated with this rulemaking, the rulemaking adoption also includes various stylistic, non-substantive changes to update rule language to current Texas Register style and format requirements. Such changes include appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. Where the proposal of additional subsections, paragraphs, subparagraphs, etc. are adopted, subsequent re-lettering or renumbering are modified accordingly. These changes are non-substantive and are not specifically discussed in this preamble.
§35.202, Emergency Order to Compel Utility to Provide Service or Interconnection
The commission adopts new §35.202 to allow the commission or executive director to issue emergency orders to compel a retail public utility to provide water and/or sewer service to ensure safe drinking water or environmental protection, or provide an emergency interconnection for not more than 90 days.
Final Regulatory Impact Determination
The rulemaking adoption is intended to implement statutory changes made by HB 3542 and SB 700 of the 86th Texas Legislature, 2019, to add a new section to reflect changes to TWC, Chapters 5 and 13. New §35.202 adds authority to allow the executive director to issue emergency orders to compel a retail public utility to provide water and/or sewer service to ensure safe drinking water or environmental protection, or provide an emergency interconnection for not more than 90 days.
The commission reviewed the rulemaking adoption 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 rulemaking adoption does not meet the statutory definition of a major environmental rule. The specific intent is to protect the environment or reduce risks to human health from environmental exposure. However, the adopted rule 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 rule will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted rule will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.
Second, the rulemaking adoption 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 rulemaking adoption does not meet any of the four preceding applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law; 2) does not exceed any express requirement of TWC, Chapter 5 or 13, which relates to orders issued by the commission, orders issued by the executive director, and emergency orders; 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 proposed solely under the general powers of the agency.
Since this rulemaking adoption 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.
Takings Impact Assessment
The commission prepared a takings impact assessment for the adopted rule pursuant to Texas Government Code, §2007.043. The specific purpose of the adopted rule is to ensure consistency between the rules and their applicable statutes as amended by recent legislation and grant the commission and executive director authority to compel a retail public utility with a certificate of public convenience and necessity to provide water and/or sewer service that complies with statutory and regulatory requirements of the commission and to compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water and/or sewer service for up to 90 days.
The adopted regulations will not affect a landowner's rights in private real property because this rulemaking adoption will not burden, 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 rule does not constitute a taking because it will not burden private 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 (CMP).
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Public Comments
The commission held a public hearing on November 10, 2020. The comment period closed on November 17, 2020. The commission received an oral comment from the Assistant Director of Public Works with the City of Belton. Although the City of Belton expressed concerns that the rulemaking lacks necessary details and considerations, it did not provide any suggested revisions to the proposed rule language.
Response to Comments
Comment
The City of Belton commented that the rule language does not require public notice, the ability to deny a commission ordered interconnection, correct billing issues, provide protection from poor water quality issues, address the inability to provide water or sewer service, specify any indicators for when an emergency order will be issued for an interconnection, address that the order issuance may cause capacity and overflow problems, and expressed concerns that the regulation lacks these necessary details and considerations. The City of Belton did not provide any suggested revisions to the proposed rule language.
Response
The adopted rules implement the exact language contained in HB 3542 and SB 700. TWC, §§5.501, 5.502, and 5.504 and 30 TAC Chapter 35, Subchapter C include notice and opportunity for hearing requirements for emergency orders. These notice and hearing requirements apply to emergency interconnection. Prior to the transfer of the Utility program to the Public Utility Commission of Texas (PUC) on September 1, 2014, TCEQ had the authority in 30 TAC §291.14(a)(2) to compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water or sewer service, or both, for not more than 90 days. Currently the TCEQ has the authority after notice and hearing in 30 TAC §291.114(2) to order two or more public utilities or water supply or sewer service corporations to establish specified facilities for interconnecting service. The proposed rulemaking expands the TCEQs authority to issue emergency orders to include retail public utilities. In the context of an emergency order, a specific trigger is not feasible, because TCEQ must be able to respond to diverse and unpredictable conditions. In any case, TCEQ staff will work with both entities prior to issuing any emergency order to ensure that issuing such an order is the best course of action given the circumstances. Additionally, TCEQ and PUC have agreed to coordinate per the Memo of Understanding signed January 2020, to address situations that may require the issuance of an emergency order pursuant to TWC, §13.041. No changes were made to the rules in response to this comment.
Statutory Authority
The new rule is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the TWC and other laws of this state; and TWC, §13.041(b), concerning General Powers of Utility Commission and Commission; Rules; Hearings, which provides the commission with the authority to adopt any rules reasonably required in the exercise of its powers and jurisdiction.
The adopted new rule implements Senate Bill 700 passed by the 86th Texas Legislature, 2019.
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 February 26, 2021.
TRD-202100813
Charmain Backens
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: March 18, 2021
Proposal publication date: October 16, 2020
For further information, please call: (512) 239-2678
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §291.14 and §291.142.
The amendments to §291.14 and §291.142 are adopted without changes to the proposal as published in the October 16, 2020, issue of the Texas Register (45 TexReg 7396) and, therefore, will not be republished.
Background and Summary of the Factual Basis for the Adopted Rules
The rulemaking adoption implements statutory changes made by House Bill (HB) 3542 and Senate Bill (SB) 700 of the 86th Texas Legislature, 2019.
HB 3542 amends Texas Water Code (TWC), Chapter 13 and adds additional criteria that allow the TCEQ to appoint a person to temporarily manage a utility. Specifically, TWC, §13.4132(a)(3) authorizes the appointment of a temporary manager if a utility provides retail water or sewer utility service through fewer than 10,000 taps or connections and violates a final order of the commission by failing to provide system capacity that is greater than the required raw water or groundwater production rate or the anticipated daily demand of the system; provide a minimum pressure of 35 pounds per square inch (psi) throughout the distribution system under normal operating conditions; or maintain accurate or properly calibrated testing equipment or other means of monitoring the effectiveness of a chemical treatment or pathogen inactivation or removal process. HB 3542 took effect on September 1, 2019.
SB 700 amended TWC, Chapters 5 and 13 to authorize the TCEQ to issue emergency orders with or without a hearing to compel a retail public utility to provide water and/or sewer service to ensure safe drinking water or environmental protection. Additionally, TCEQ can issue an emergency order to compel a retail public utility to provide an emergency interconnection for not more than 90 days if necessary to ensure safe drinking water or environmental protection. The legislation also amends TWC, Chapter 5 to allow the commission by order or rule to delegate to the executive director of the TCEQ the authority to receive applications, issue emergency orders under TWC, §13.041(h), and authorize in writing a representative or representatives to act on the executive director's behalf. SB 700 took effect on September 1, 2019.
Corresponding rulemaking is published in this issue of the Texas Register concerning 30 Texas Administrative Code (TAC) Chapter 35, Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions.
Section by Section Discussion
In addition to the adopted revisions associated with this rulemaking, the rulemaking adoption also includes various stylistic, non-substantive changes to update rule language to current Texas Register style and format requirements. Such changes included appropriate and consistent use of acronyms, section references, rule structure, and certain terminology. Where the proposal of additional subsections, paragraphs, subparagraphs, etc. are adopted, subsequent re-lettering or renumbering are modified accordingly. These changes are non-substantive and are not specifically discussed in this preamble.
§291.14, Emergency Orders
The commission adopts amended §291.14(a) by moving portions of the existing criteria into adopted subsection (a)(1) and to include two additional criteria as adopted subsection (a)(2) and (3) that will allow the commission or the executive director to issue emergency orders.
§291.142, Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver
The commission adopts to add §291.142(a)(3) to include additional criteria that will allow the commission or the executive director to appoint a person to temporarily manage a utility.
Final Regulatory Impact Determination
The rulemaking adoption is intended to implement statutory changes made by HB 3542 and SB 700 to amend sections to reflect changes to TWC, Chapters 5 and 13. The intent of the changes to §291.14 is to add criteria to allow the executive director to issue emergency orders to compel a retail public utility to provide water and/or sewer service to ensure safe drinking water or environmental protection, or provide an emergency interconnection for not more than 90 days. The intent on the changes to §291.142 is to add additional criteria that will allow the commission or executive director to appoint a person to temporarily manage a utility.
The commission reviewed the rulemaking adoption 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 rulemaking adoption does not meet the statutory definition of a major environmental rule. The specific intent is to protect the environment or reduce risks to human health from environmental exposure. However, 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 rules will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.
Second, the rulemaking adoption 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 rulemaking adoption does not meet any of the four preceding applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law; 2) does not exceed any express requirements of TWC, Chapter 5 or 13, which relate to orders issued by the commission, orders issued by the executive director, and emergency orders; 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 proposed solely under the general powers of the agency.
Since this rulemaking adoption 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.
Takings Impact Assessment
The commission prepared a takings impact assessment for the adopted rules pursuant to Texas Government Code, §2007.043. The specific purpose of these adopted rules is to ensure consistency between the rules and their applicable statutes as amended by recent legislation; to grant the commission and executive director authority, with or without a hearing; to compel a retail public utility with a certificate of public convenience and necessity to provide water and/or sewer service that complies with statutory and regulatory requirements of the commission; to compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water and/or sewer service for up to 90 days; to establish what qualifies as adequate notice to a retail public utility if an emergency order is issued without a hearing; and to add criteria which will allow the commission or the executive director to appoint a person to temporarily manage a utility.
The adopted regulations will not affect a landowner's rights in private real property because this rulemaking adoption will not burden, 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 do not constitute a taking because they will not burden private 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 (CMP).
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Public Comments
The commission held a public hearing on November 10, 2020. The comment period closed on November 17, 2020. The commission received an oral comment from the Assistant Director of Public Works with the City of Belton. Although the City of Belton expressed concerns that the rulemaking lacks necessary details and considerations, it did not provide any suggested revisions to the proposed rule language.
Response to Comments
Comment
The City of Belton commented that the rule language does not require public notice, the ability to deny a commission ordered interconnection, correct billing issues, provide protection from poor water quality issues, address the inability to provide water or sewer service, specify any indicators for when an emergency order will be issued for an interconnection, address that the order issuance may cause capacity and overflow problems, and expressed concerns that the regulation lacks these necessary details and considerations. The City of Belton did not provide any suggested revisions to the proposed rule language.
Response
The adopted rules implement the exact language contained in HB 3542 and SB 700. TWC, §§5.501, 5.502, 5.504 and 30 TAC Chapter 35, Subchapter C include notice and opportunity for hearing requirements for emergency orders. These notice and hearing requirements apply to emergency interconnection. Prior to the transfer of the Utility program to the Public Utility Commission of Texas (PUC) on September 1, 2014, TCEQ had the authority in 30 TAC §291.14(a)(2) to compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water or sewer service, or both, for not more than 90 days. Currently the TCEQ has the authority after notice and hearing in 30 TAC §291.114(2) to order two or more public utilities or water supply or sewer service corporations to establish specified facilities for interconnecting service. The proposed rulemaking expands the TCEQ's authority to issue emergency orders to include retail public utilities. In the context of an emergency order, a specific trigger is not feasible, because TCEQ must be able to respond to diverse and unpredictable conditions. In any case, TCEQ staff will work with both entities prior to issuing any emergency order to ensure that issuing such an order is the best course of action given the circumstances. Additionally, TCEQ and PUC have agreed to coordinate per the Memo of Understanding signed January 2020, to address situations that may require the issuance of an emergency order pursuant to TWC, §13.041. No changes were made to the rules in response to this comment.
SUBCHAPTER A. GENERAL PROVISIONS
Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the TWC and other laws of this state and TWC, §13.041(b), concerning General Powers of Utility Commission and Commission; Rules; Hearings, which provides the commission with the authority to adopt any rules reasonably required in the exercise of its powers and jurisdiction.
The adopted amendment implements Senate Bill 700 passed by the 86th Texas Legislature, 2019.
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 February 26, 2021.
TRD-202100814
Charmaine Backens
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: March 18, 2021
Proposal publication date: October 16, 2020
For further information, please call: (512) 239-2678
Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the TWC and other laws of this state; and TWC, §13.041(b), concerning General Powers of Utility Commission and Commission; Rules; Hearings, which provides the commission with the authority to adopt any rules reasonably required in the exercise of its powers and jurisdiction.
The adopted amendment implements House Bill 3542 passed by the 86th Texas Legislature, 2019.
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 February 26, 2021.
TRD-202100815
Charmaine Backens
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: March 18, 2021
Proposal publication date: October 16, 2020
For further information, please call: (512) 239-2678