Adopted Rules Title 30

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 33. CONSOLIDATED PERMIT PROCESSING

SUBCHAPTER B. GENERAL PROVISIONS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §33.25.

The amendment to §33.25 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6710). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HGB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §33.25 updates a cross-reference.

The commission also adopts, in a concurrent rulemaking, amendments to 30 TAC Chapters 39, 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the State Implementation Plan are also necessary (Rule Project Number 2019-120-039-LS).

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§33.25, Correction of a Consolidated Permit

The commission adopts amended §33.25 to update the cross-reference from §50.45 to §50.145 (Corrections to Permits).

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §33.25 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §33.25 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

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

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §33.25 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the adopted amendment affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 33.25 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapters J and M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The amendment implements TWC, Chapter 5, Subchapters J and M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001608

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 35. EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §35.13 and §35.25.

The amendments to §35.13 and §35.25 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6713). The rules will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §35.13 and §33.25 update cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

§35.13, Eligibility of Executive Director

The commission adopts amended §35.13 to update the cross-reference from §50.41 to §50.141 (Eligibility of Executive Director).

§35.25, Notice and Opportunity for Hearing

The commission adopts amended §33.25(e)(1)(A) to update the cross-reference from §39.7 to §39.407 (Mailing Lists) and from §39.13 to §39.413 (Mailed Notice).

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §35.13 and §35.25 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §35.13 and §35.25 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendments do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the adopted amendments affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 35.13 and §35.25 are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER B. AUTHORITY OF EXECUTIVE DIRECTOR

30 TAC §35.13

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapters L and M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The amendment implements TWC, Chapter 5, Subchapters L and M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001609

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER C. GENERAL PROVISIONS

30 TAC §35.25

Statutory Authority

The amendment implements TWC, Chapter 5, Subchapters L and M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001610

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 39. PUBLIC NOTICE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the repeal of §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, 39.25, 39.101, 39.103, 39.105 - 39.107, 39.109, 39.151, 39.201, 39.251, and 39.253 without changes to the proposal as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6717).

Background and Summary of the Factual Basis for the Adopted Rules

The rules in Chapter 39, Subchapters A - E were initially adopted to be effective January 8, 1997, (December 27, 1996, issue of the Texas Register (21 TexReg 12550)). In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, including those in Chapter 39, Subchapters A - E, and to other actions of the commission.

Concurrently with this rulemaking, the commission adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals (Rule Project Number 2019-121-033-LS). In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing, but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the applicability date. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P.

The commission also concurrently adopts amendments to 30 TAC Chapters 39, 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the State Implementation Plan are also necessary (Rule Project Number 2019-120-039-LS).

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

Subchapter A: Applicability and GeneralProvisions

The commission adopts the repeal of §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, and 39.25. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter B: Public Notice of Solid Waste Applications

The commission adopts the repeal of §§39.101, 39.103, 39.105 - 39.107, and 39.109. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter C: Public Notice of Water Quality Applications

The commission adopts the repeal of §39.151. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter D: Public Notice of Air Quality Applications

The commission adopts the repeal of §39.201. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter E: Public Notice of Other Specific Applications

The commission adopts the repeal of §39.251 and §39.253. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeal of §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, 39.25, 39.101, 39.103, 39.105 - 39.107, 39.109, 39.151, 39.201, 39.251, and 39.253 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking repeals obsolete rules to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted repeal of §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, 39.25, 39.101, 39.103, 39.105 - 39.107, 39.109, 39.151, 39.201, 39.251, and 39.253 does not exceed an express requirement of state law or a requirement of a delegation agreement, and the rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of the Texas Health and Safety Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

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

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted repeal of §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, 39.25, 39.101, 39.103, 39.105 - 39.107, 39.109, 39.151, 39.201, 39.251, and 39.253 is procedural in nature and will not burden private real property. The adopted rulemaking does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

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

Effect on Sites Subject to the Federal Operating Permits Program

None of the sections adopted for repeal are applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER A. APPLICABILITY AND GENERAL PROVISIONS

30 TAC §§39.1, 39.3, 39.5, 39.7, 39.9, 39.11, 39.13, 39.15, 39.17, 39.19, 39.21, 39.23, 39.25

Statutory Authority

The repeals 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeals are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air.

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001585

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER B. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS

30 TAC §§39.101, 39.103, 39.105 - 39.107, 39.109

Statutory Authority

The repeals 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeals are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's 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 rulemaking implements TWC, §§5.013, 5.102, and 5.103; and THSC, §361.024.

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

Filed with the Office of the Secretary of State on April 24, 2020.

TRD-202001586

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER C. PUBLIC NOTICE OF WATER QUALITY APPLICATIONS

30 TAC §39.151

Statutory Authority

The repeal is 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeal is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's 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 rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024.

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 April 24, 2020.

TRD-202001587

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER D. PUBLIC NOTICE OF AIR QUALITY APPLICATIONS

30 TAC §39.201

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, and 5.103; and THSC, §382.017.

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 April 24, 2020.

TRD-202001589

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER E. PUBLIC NOTICE OF OTHER SPECIFIC APPLICATIONS

30 TAC §39.251, §39.253

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019.

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 April 24, 2020.

TRD-202001590

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 39. PUBLIC NOTICE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§39.402, 39.403, 39.501, 39.503, and 39.709; and new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011.

The amendments to §§39.402, 39.501, and 39.709; and new §§39.1001, 39.1005, 39.1007, 39.1009, and 39.1011 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6721) and, therefore, will not be republished. The amendments to §39.403 and §39.503 and new §39.1003 are adopted with changes to the proposed text and will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350 to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. Adopted new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011 carry forward only the portions of the rules that are currently applicable to the types of applications and do not add or remove any current notice requirements for these applications. The adopted new rules increase the ease of understanding the applicable notice requirements for these applications. In addition, the adopted amendments to §§39.402, 39.403, 39.501, 39.503, and 39.709 remove obsolete text and update cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as grammatical or reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§39.402, Applicability to Air Quality Permits and Permit Amendments

The commission adopts to remove §39.402(b) and re-letter the subsequent subsection.

§39.403, Applicability

The commission adopts amended §39.403(a) to remove obsolete text that references rules that are concurrently adopted for repeal. The commission adopts amended §39.403(a)(1) to add that adopted §39.403(e) lists the types of applications for which public notice is not required.

The commission adopts to remove §39.403(c)(4) - (8) and relocate the text to adopted new Chapter 39, Subchapter P. The commission also adopts to remove §39.403(c)(9) and relocate the text to adopted §39.403(e)(4). The remaining paragraphs are renumbered accordingly.

Because §39.551 is in Chapter 39, Subchapter J, the commission adopts amended §39.403(c)(4) to ensure there is no conflict in the introductory part of amended §39.403(c) and §39.403(c)(4).

Finally, the commission adopts §39.403(c)(7) to reference applications subject to adopted new Chapter 39, Subchapter P.

The commission adopts amended §39.403(d) to add a reference to §39.705 (Mailed Notice for Radioactive Material Licenses) to ensure the correct mailed notice information is included.

The commission adopts §39.403(e)(1) - (4) to relocate and update the text of §39.15(a) and §39.403(c)(9).

At adoption, the commission amends §39.403(c)(1) and (4) and (e)(2) to conform references to Texas Register style requirements.

§39.501, Application for Municipal Solid Waste Permit

The commission adopts to remove obsolete §39.501(e)(1) and obsolete text in §39.501(e)(2) regarding a public meeting for an application for a new municipal solid waste facility because no applications filed before September 1, 2005 remain pending with the commission. The commission adopts to re-designate §39.501(e)(2) and (e)(2)(B) as §39.501(e)(1) and (2) and update the cross-references in §39.501(e)(4) - (6), accordingly.

§39.503, Application for Industrial or Hazardous Waste Facility Permit

The commission adopts amended §39.503(b) and (c) to update the cross-references in each subsection from §50.45, which is concurrently adopted for repeal, to §50.145 (Corrections to Permits). In addition, the commission adopts to remove obsolete text in §39.503(e)(1), (2), and (4) regarding requirement for an applicant to hold a public meeting for an application for a new hazardous waste facility, for a major amendment to or a Class 3 modification of an existing hazardous waste facility permit, or for a new industrial or hazardous waste facility because no applications filed before September 1, 2005 remain pending with the commission.

At adoption, the commission amends §39.503 to conform references to Texas Register style requirements.

Subchapter M, Public Notice for Radioactive Material Licenses

§39.709, Notice of Contested Case Hearing on Application

The commission adopts to remove §39.709(d) because no new license applications filed on or before January 1, 2007 remain pending with the commission.

§39.1001, Purpose and Applicability

The commission adopts new §39.1001 to relocate language in §39.1 (Applicability) and §39.3 (Purpose), both concurrently adopted for repeal, and from §39.403 to adopted new Chapter 39, Subchapter P. Adopted new §39.1001 specifies the types of applications for which an opportunity for contested case hearings is otherwise not required by law and which are not subject to the requirements of Chapter 39, Subchapters G - M.

§39.1003, Notice of Application for Minor Amendments

The commission adopts new §39.1003 to relocate text from §39.403(c)(5), and from §39.11 (Text of Public Notice) and §39.17 (Notice of Minor Amendment), which are concurrently adopted for repeal. Adopted new §39.1003(a) provides that for applications for minor amendments of a permit under Chapter 305, Subchapter D (Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits), the chief clerk shall mail notice to the persons listed in §39.413 (Mailed Notice); and for minor amendments of injection well permit applications the chief clerk shall mail notices to persons entitled to receive notice under §39.651(c)(4) (Application for Injection Well Permit). Adopted new §39.1003(b) specifies the text of the notice of a minor amendment and adopted new §39.1003(c) provides that the deadline to file public comment is ten days after mailing. Finally, adopted new §39.1003(d) provides that §39.1003(a) does not apply to applications seeking a minor amendment or minor modification of a wastewater discharge permit. For such applications, the notice requirements are in §39.551 (Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge).

At adoption, the commission corrects the title of Chapter 305, Subchapter D in the reference.

§39.1005, Notice of Class 1 Modification of an Industrial Solid Waste or Hazardous Waste Permit

The commission adopts new §39.1005 to relocate text from §39.403(c)(6), and from §39.11 and §39.105 (Application for a Class 1 Modification of an Industrial Solid Waste or Hazardous Waste Permit), which are concurrently adopted for repeal. Adopted new §39.1005(b) specifies the text for notice requirements in §305.69 (Solid Waste Permit Modification at the Request of the Permittee) for industrial solid waste or hazardous waste permits. Adopted new §39.1005(c) specifies requirements for mailed notice for these applications.

§39.1007, Notice of Class 2 Modification of an Industrial Solid Waste or Hazardous Waste Permit

The commission adopts new §39.1007 to relocate text from §39.107 (Application for a Class 2 Modification of an Industrial or Hazardous Waste Permit), which is concurrently adopted for repeal, and from §§39.403(c)(8), 39.411 (Text of Public Notice), and 305.69 (Solid Waste Permit Modification at the Request of the Permittee). Adopted new §39.1007 provides that notice requirements for applications for Class 2 modifications are in §305.69, except that the text of notice shall comply with §39.411(b) and §305.69. In addition, it provides that the notice shall specify the deadline to file public comment with the chief clerk and that when mailed notice is required, the applicant shall mail notice to the persons listed in §39.413.

§39.1009, Notice of Modification of a Municipal Solid Waste Permit or Registration

The commission adopts new §39.1009 to relocate text from §39.403(c)(7), and from §39.106(a) and (b) (Application for Modification of a Municipal Solid Waste Permit or Registration), which is concurrently adopted for repeal. Adopted §39.1009 specifies that the mailed notice requirements for applications are in §305.70 (Municipal Solid Waste Permit and Registration Modifications).

§39.1011, Notice of Application for Voluntary Transfer of Injection Well Permit

The commission adopts new §39.1011 to relocate text from §39.403(c)(4), and from §39.11 and §39.15 (Public Notice Not Required for Certain Types of Applications), which are concurrently adopted for repeal. Adopted new §39.1011 specifies the requirements for the content of and to whom notice of a voluntary transfer of an injection well permit must be provided, as well as, the deadline to file public comment on the application.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§39.402, 39.403, 39.501, 39.503, and 39.709; and new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §§39.402, 39.403, 39.501, 39.503, and 39.709, and new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §§39.402, 39.403, 39.501, 39.503, and 39.709, and new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011 do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rules do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the rules affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Adopted amended §§39.402, 39.403, 39.501, 39.503, and 39.709; and new §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, and 39.1011, are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER H. APPLICABILITY AND GENERAL PROVISIONS

30 TAC §39.402, §39.403

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendments are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendments are adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and§382.011.

§39.403.Applicability.

(a) Permit applications that are declared administratively complete on or after September 1, 1999 are subject to Subchapters H - J, L, and M of this chapter (relating to Applicability and General Provisions; Public Notice of Solid Waste Applications; Public Notice of Water Quality Applications and Water Quality Management Plans; Public Notice of Injection Well and Other Specific Applications; and Public Notice for Radioactive Material Licenses). All consolidated permit applications are subject to Subchapter G of this chapter (relating to Public Notice for Applications for Consolidated Permits).

(1) Explanation of applicability. Subsection (b) of this section lists all the types of applications to which Subchapters H - J, L, and M of this chapter apply. Subsection (c) of this section lists certain types of applications that would be included in the applications listed in subsection (b) of this section, but that are specifically excluded. Subsection (d) of this section specifies that only certain sections apply to applications for radioactive materials licenses. Subsection (e) of this section lists the types of applications for which public notice is not required.

(2) Explanation of organization. Subchapter H of this chapter contains general provisions that may apply to all applications under Subchapters H - M of this chapter. Additionally, in Subchapters I - M of this chapter, there is a specific subchapter for each type of application. Those subchapters contain additional requirements for each type of application, as well as indicating which parts of Subchapter H of this chapter must be followed.

(3) Types of applications. Unless otherwise provided in Subchapters G - M of this chapter, public notice requirements apply to applications for new permits and applications to amend, modify, or renew permits.

(b) As specified in those subchapters, Subchapters H - J, L, and M of this chapter apply to notices for:

(1) applications for municipal solid waste, industrial solid waste, or hazardous waste permits under Texas Health and Safety Code (THSC), Chapter 361;

(2) applications for wastewater discharge permits under Texas Water Code (TWC), Chapter 26, including:

(A) applications for the disposal of sewage sludge or water treatment sludge under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation); and

(B) applications for individual permits under Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);

(3) applications for underground injection well permits under TWC, Chapter 27, or under THSC, Chapter 361;

(4) applications for production area authorizations or exempted aquifers under Chapter 331 of this title (relating to Underground Injection Control);

(5) contested case hearings for permit applications or contested enforcement case hearings under Chapter 80 of this title (relating to Contested Case Hearings);

(6) applications for radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules), except as provided in subsection (d) of this section;

(7) applications for consolidated permit processing and consolidated permits processed under TWC, Chapter 5, Subchapter J, and Chapter 33 of this title (relating to Consolidated Permit Processing); and

(8) Water Quality Management Plan updates processed under TWC, Chapter 26, Subchapter B.

(c) Regardless of the applicability of subsection (b) of this section, Subchapters H - M of this chapter do not apply to the following actions and other applications where notice or opportunity for contested case hearings are otherwise not required by law:

(1) applications for authorizations under Chapter 321 of this title (relating to Control of Certain Activities by Rule), except for applications for individual permits under Chapter 321, Subchapter B of this title;

(2) applications for registrations and notifications under Chapter 312 of this title;

(3) applications under Chapter 332 of this title (relating to Composting);

(4) applications for minor modifications of Texas Pollutant Discharge Elimination System permits under §305.62(c)(3) of this title (relating to Amendments), except as provided by §39.551 of this title (relating to Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge);

(5) applications for registration and notification of sludge disposal under §312.13 of this title (relating to Actions and Notice);

(6) applications for registration of pre-injection units for nonhazardous, noncommercial, underground injection wells under §331.17 of this title (relating to Pre-injection Units Registration); or

(7) applications listed in Subchapter P of this chapter (relating to Other Notice Requirements).

(d) Applications for radioactive materials licenses under Chapter 336 of this title are not subject to §39.405(c) and (e) of this title (relating to General Notice Provisions); §§39.418 - 39.420 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit; Notice of Application and Preliminary Decision; and Transmittal of the Executive Director's Response to Comments and Decision); and certain portions of §39.413 of this title (relating to Mailed Notice) that are not listed in §39.705 of this title (relating to Mailed Notice for Radioactive Material Licenses).

(e) Public notice is not required for the following:

(1) applications for the correction or endorsement of permits under §50.145 of this title (relating to Corrections of Permits);

(2) permittees' voluntary requests for suspension or revocation of permits under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits);

(3) applications for special collection route permits under §330.7(c)(2) of this title (relating to Permit Required); or

(4) applications for minor modifications of underground injection control permits under §305.72 of this title (relating to Underground Injection Control (UIC) Permit Modifications at the Request of the Permittee).

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 April 24, 2020.

TRD-202001611

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER I. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS

30 TAC §39.501, §39.503

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendments are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's 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. In addition, the amendments are adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2001.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, and 27.019; and THSC, §361.024.

§39.503.Application for Industrial or Hazardous Waste Facility Permit.

(a) Applicability. This section applies to applications for industrial or hazardous waste facility permits that are declared administratively complete on or after September 1, 1999.

(b) Preapplication requirements.

(1) If an applicant for an industrial or hazardous waste facility permit decides to participate in a local review committee process under Texas Health and Safety Code, §361.063, the applicant shall submit a notice of intent to file an application to the executive director, setting forth the proposed location and type of facility. The applicant shall mail notice to the county judge of the county in which the facility is to be located. If the proposed facility is to be located in a municipality or the extraterritorial jurisdiction of a municipality, a copy of the notice must also be mailed to the mayor of the municipality. Mailed notice must be by certified mail. When the applicant submits the notice of intent to the executive director, the applicant shall publish notice of the submission in a paper of general circulation in the county in which the facility is to be located.

(2) The requirements of this paragraph are set forth in 40 Code of Federal Regulations (CFR) §124.31(b) - (d), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), and apply to all hazardous waste part B applications for initial permits for hazardous waste management units, hazardous waste part B permit applications for major amendments, and hazardous waste part B applications for renewal of permits, where the renewal application is proposing a significant change in facility operations. For the purposes of this paragraph, a "significant change" is any change that would qualify as a Class 3 permit modification under §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee). The requirements of this paragraph do not apply to an application for minor amendment under §305.62 of this title (relating to Amendments ), correction under §50.145 of this title (relating to Corrections to Permits), or modification under §305.69 of this title, or to an application that is submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility, unless the application is also for an initial permit for hazardous waste management unit(s), or the application is also for renewal of the permit, where the renewal application is proposing a significant change in facility operations.

(1) Upon the executive director's receipt of an application, or notice of intent to file an application, the chief clerk shall mail notice to the state senator and representative who represent the area in which the facility is or will be located and to the persons listed in §39.413 of this title (relating to Mailed Notice). For all hazardous waste part B applications for initial permits for hazardous waste management units, hazardous waste part B permit applications for major amendments, and hazardous waste part B applications for renewal of permits, the chief clerk shall provide notice to meet the requirements of this subsection and 40 CFR §124.32(b), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), and the executive director shall meet the requirements of 40 CFR §124.32(c), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417). The requirements of this paragraph relating to 40 CFR §124.32(b) and (c) do not apply to an application for minor amendment under §305.62 of this title, correction under §50.145 of this title, or modification under §305.69 of this title, or to an application that is submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility, unless the application is also for an initial permit for hazardous waste management unit(s), or the application is also for renewal of the permit.

(2) After the executive director determines that the application is administratively complete:

(A) notice must be given as required by §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). Notice under §39.418 of this title will satisfy the notice of receipt of application required by §281.17(d) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness); and

(B) the executive director or chief clerk shall mail notice of this determination along with a copy of the application or summary of its contents to the mayor and health authority of a municipality in whose territorial limits or extraterritorial jurisdiction the solid waste facility is located, and to the county judge and the health authority of the county in which the facility is located.

(d) Notice of Application and Preliminary Decision. The notice required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) must be published once as required by §39.405(f)(2) of this title (relating to General Notice Provisions). In addition to the requirements of §39.405(h) and §39.419 of this title, the following requirements apply.

(1) The applicant shall publish notice at least once in a newspaper of general circulation in each county that is adjacent or contiguous to each county in which the facility is located. One notice may satisfy the requirements of §39.405(f)(2) of this title and of this subsection, if the newspaper meets the requirements of both rules.

(2) If the application concerns a hazardous waste facility, the applicant shall broadcast notice of the application on one or more local radio stations that broadcast to an area that includes all of the county in which the facility is located. The executive director may require that the broadcasts be made to an area that also includes contiguous counties.

(3) The notice must comply with §39.411 of this title (relating to Text of Public Notice). The deadline for public comments on industrial solid waste applications will be not less than 30 days after newspaper publication, and for hazardous waste applications, not less than 45 days after newspaper publication.

(e) Notice of public meeting.

(1) For an application for a new hazardous waste facility, the agency:

(A) may hold a public meeting under §55.154 of this title (relating to Public Meetings) in the county in which the facility is proposed to be located to receive public comment concerning the application; but

(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is proposed to be located to receive public comment concerning this application:

(i) on the request of a member of the legislature who represents the general area in which the facility is proposed to be located; or

(ii) if the executive director determines that there is substantial public interest in the proposed facility.

(2) For an application for a major amendment to or a Class 3 modification of an existing hazardous waste facility permit, the agency:

(A) may hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment concerning the application; but

(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment concerning the application:

(i) on the request of a member of the legislature who represents the general area in which the facility is located; or

(ii) if the executive director determines that there is substantial public interest in the facility.

(3) For purposes of this subsection, "substantial public interest" is demonstrated if a request for a public meeting is filed by:

(A) a local governmental entity with jurisdiction over the location at which the facility is located or proposed to be located by formal resolution of the entity's governing body;

(B) a council of governments with jurisdiction over the location at which the facility is located or proposed to be located by formal request of either the council's solid waste advisory committee, executive committee, or governing board;

(C) a homeowners' or property owners' association formally organized or chartered and having at least ten members located in the general area in which the facility is located or proposed to be located; or

(D) a group of ten or more local residents, property owners, or businesses located in the general area in which the facility is located or proposed to be located.

(4)For an application for a new industrial or hazardous waste facility that would accept municipal solid waste, the applicant may hold a public meeting in the county in which the facility is proposed to be located.

(5)A public meeting is not a contested case proceeding under the Administrative Procedure Act. A public meeting held as part of a local review committee process under subsection (b) of this section meets the requirements of paragraph (1) or (2) of this subsection if public notice is provided under this subsection.

(6)The applicant shall publish notice of any public meeting under this subsection, in accordance with §39.405(f)(2) of this title, once each week during the three weeks preceding a public meeting. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters). For public meetings under paragraph (3) of this subsection, the notice of public meeting is not subject to §39.411(d) of this title, but instead must contain at least the following information:

(A) permit application number;

(B) applicant's name;

(D) location and availability of copies of the application;

(E) location, date, and time of the public meeting; and

(F) name, address, and telephone number of the contact person for the applicant from whom interested persons may obtain further information.

(7) For public meetings held by the agency under paragraph (1) or (2) of this subsection, the chief clerk shall mail notice to the persons listed in §39.413 of this title.

(f) Notice of hearing.

(1) Applicability. This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).

(2) Newspaper notice.

(A) The applicant shall publish notice at least once in a newspaper of general circulation in the county in which the facility is located and in each county and area that is adjacent or contiguous to each county in which the proposed facility is located.

(B) If the application concerns a hazardous waste facility, the hearing must include one session held in the county in which the facility is located. The applicant shall publish notice of the hearing once each week during the three weeks preceding the hearing under §39.405(f)(2) of this title. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters) or have a total size of at least nine column inches (18 square inches). The text of the notice must include the statement that at least one session of the hearing will be held in the county in which the facility is located.

(3) Mailed notice.

(A) If the applicant proposes a new solid waste management facility, the applicant shall mail notice to each residential or business address located within 1/2 mile of the facility and to each owner of real property located within 1/2 mile of the facility listed in the real property appraisal records of the appraisal district in which the facility is located. The notice must be mailed to the persons listed as owners in the real property appraisal records on the date the application is determined to be administratively complete. The chief clerk shall mail notice to the persons listed in §39.413 of this title, except that the chief clerk shall not mail notice to the persons listed in §39.413(1) of this title. The notice must be mailed no more than 45 days and no less than 30 days before the hearing. Within 30 days after the date of mailing, the applicant shall file with the chief clerk an affidavit certifying compliance with its obligations under this subsection. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with this subparagraph.

(B) If the applicant proposes to amend or renew an existing permit, the chief clerk shall mail notice to the persons listed in §39.413 of this title.

(4) Radio broadcast. If the application concerns a hazardous waste facility, the applicant shall broadcast notice of the hearing under subsection (d)(2) of this section.

(5) Deadline. Notice under paragraphs (2)(A), (3), and (4) of this subsection must be completed at least 30 days before the hearing.

(g) Injection wells. This section does not apply to applications for an injection well permit.

(h) Information repository. The requirements of 40 CFR §124.33(b) - (f), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), apply to all applications for hazardous waste permits.

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 April 24, 2020.

TRD-202001612

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER M. PUBLIC NOTICE FOR RADIOACTIVE MATERIAL LICENSES

30 TAC §39.709

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; and THSC, §401.051, which authorizes the commission adopt rules relating to control of sources of radiation. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

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 April 24, 2020.

TRD-202001613

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER P. OTHER NOTICE REQUIREMENTS

30 TAC §§39.1001, 39.1003, 39.1005, 39.1007, 39.1009, 39.1011

Statutory Authority

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The new sections are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's 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. In addition, the new sections are adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, concerning Hearings for Texas Commission on Environmental Quality, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

§39.1003.Notice of Application for Minor Amendments.

(a) Except as provided in subsection (d) of this section, the only required notice for applications for a minor amendment of a permit under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits) is that the chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice). For an application for a minor amendment of an injection well permit, the chief clerk shall also mail notice to the persons entitled to receive notice under §39.651(c)(4) of this title (relating to Application for Injection Well Permit).

(b) The text of the notice of application for minor amendment of a permit must provide:

(1) the name and address of the agency;

(2) the name and address of the applicant and, if different, the location of the facility or activity to be regulated by the permit;

(3) a brief description of the application and business conducted at the facility or activity described in the application or the draft permit;

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

(5) a brief description of public comment procedures;

(6) the application or permit number;

(7) a statement that the executive director may issue final approval of the application;

(8) a statement of whether the executive director has prepared a draft permit; and

(9) the deadline to file comments.

(d) Subsection (a) of this section does not apply to applications for a minor amendment or minor modification of a wastewater discharge permit. For such applications, the notice requirements are in §39.551 of this title (relating to Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge).

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 April 24, 2020.

TRD-202001614

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 39. PUBLIC NOTICE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603.

The commission adopts the amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6733). The rules will not be republished.

The adopted amendments to §§39.405(g)(3) and (h)(2)(C) and (3); 39.411(e)(4)(A)(i) and (ii), (e)(5), (f)(8) and (9), and (g); 39.419(e)(1); 39.420(b)(6) and (d)(6); 39.601; and 39.603 will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission adopts amendments to 30 TAC Chapters 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary. The adopted amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 update or remove obsolete text.

Concurrently with this rulemaking, the commission adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals (Rule Project Number 2019-121-033-LS). In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing, but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Federal Clean Air Act, §110(l)

All revisions to the SIP are subject to the EPA's finding that the revisions will not interfere with any applicable requirement concerning attainment and reasonable further progress of the national ambient air quality standards, or any other requirement of the Federal Clean Air Act (74 United States Code (USC), §7410(l)). This statute has been interpreted to be whether the revision will "make air quality worse" (Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), cited with approval in Galveston-Houston Association for Smog Prevention (GHASP) v. U.S. EPA, 289 Fed. Appx. 745, 2008 WL 3471872 (5th Cir.)). Because procedural rules have no direct nexus with air quality, and because the current applicable public participation rules are approved as part of the Texas SIP, the EPA should find that there is no backsliding from the current SIP and that this SIP revision complies with 42 USC, §7410(l).

Section by Section Discussion

As part of this rulemaking, the commission adopts non-substantive changes, such as grammatical corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

Subchapter H: Applicability and General Provisions

§39.405, General Notice Provisions

The commission adopts amended §39.405(g)(3) to remove obsolete text because no applications filed prior to June 24, 2010 remain pending for commission review. The commission also adopts amended §39.405(h)(2)(C) and (3) to update cross-references to 19 TAC Chapter 89.

§39.411, Text of Public Notice

The commission adopts amended §39.411(e)(4)(A)(i) and (ii), (e)(5), (f)(8) and (9), and (g) to remove obsolete text because no applications filed prior to June 18, 2010 remain pending for commission review.

§39.419, Notice of Application and Preliminary Decision

The commission adopts amended §39.419(e)(1) to remove obsolete text because no applications filed prior to June 24, 2010 remain pending for commission review.

§39.420, Transmittal of the Executive Director's Response to Comments and Decision

The commission adopts amended §39.420(b)(6) and (d)(6) to update the reference from the commission's Office of Public Assistance to the External Relations Division.

Subchapter K: Public Notice of Air Quality Permit Applications

§39.601, Applicability

The commission adopts amended §39.601 to remove obsolete text because no applications declared administratively complete before September 1, 1999 remain pending for the commission's review.

§39.603, Newspaper Notice

The commission adopts amended §39.603(f)(1) and (g) to update cross-references.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do the amendments 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. Rather, this rulemaking removes obsolete text and updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain air quality permit applications.

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 adopted amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 are procedural in nature and will not burden private real property. The adopted amendments do not affect private property in a manner that restricts or limits an owner's right to the property that will otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendments do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

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

Effect on Sites Subject to the Federal Operating Permits Program

The adopted amendments to §§39.405, 39.411, 39.419, 39.420, 39.601, and 39.603 will not require any changes to outstanding federal operating permits.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER H. APPLICABILITY AND GENERAL PROVISIONS

30 TAC §§39.405, 39.411, 39.419, 39.420

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments are also adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions, which requires state agencies to adopt procedural rules; and Texas Government Code §2003.047, concerning Hearings for Texas Commission on Environmental Quality, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state.

The adopted amendments implement THSC, §382.056.

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 April 24, 2020.

TRD-202001603

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER K. PUBLIC NOTICE OF AIR QUALITY PERMIT APPLICATIONS

30 TAC §39.601, §39.603

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments are also adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, concerning Hearings for Texas Commission on Environmental Quality, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state.

The adopted amendments implement THSC, §382.056.

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 April 24, 2020.

TRD-202001604

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 50. ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the repeal of §§50.2, 50.13, 50.15, 50.17, 50.19, 50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, and 50.45 without changes to the proposal as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6744). The rules will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The rules in Chapter 50, Subchapters A - C were initially adopted to be effective June 6, 1996 (May 28, 1996, issue of the Texas Register (21 TexReg 4734)). In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, including those in Chapter 50, Subchapters A - C.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

Subchapter A: Purpose, Applicability, and Definitions

The commission adopts the repeal of §50.2. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter B: Action by the Commission

The commission adopts the repeal of §§50.13, 50.15, 50.17, and 50.19. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter C: Action by Executive Director

The commission adopts the repeal of §§50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, and 50.45. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeal of §§50.2, 50.13, 50.15, 50.17, 50.19, 50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, and 50.45 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking repeals obsolete rules to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted repeal of §§50.2, 50.13, 50.15, 50.17, 50.19, 50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, and 50.45 does not exceed an express requirement of state law or a requirement of a delegation agreement, and the rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of the Texas Health and Safety Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted repeal of §§50.2, 50.13, 50.15, 50.17, 50.19, 50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, and 50.45 is procedural in nature and will not burden private real property. The adopted rulemaking does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

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

Effect on Sites Subject to the Federal Operating Permits Program

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER A. PURPOSE, APPLICABILITY, AND DEFINITIONS

30 TAC §50.2

Statutory Authority

The repeal is 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeal is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air.

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001593

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER B. ACTION BY THE COMMISSION

30 TAC §§50.13, 50.15, 50.17, 50.19

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001594

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER C. ACTION BY EXECUTIVE DIRECTOR

30 TAC §§50.31, 50.33, 50.35, 50.37, 50.39, 50.41, 50.43, 50.45

Statutory Authority

The repeals 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeals are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's 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 rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.017 and §361.024.

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 April 24, 2020.

TRD-202001595

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 50. ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§50.102, 50.113, 50.131, and 50.139.

The amendments to §§50.102, 50.113, 50.131, and 50.139 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6748). The rules will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

On June 12, 2019, the commission determined that the rules in 30 TAC Chapter 39, Subchapters A - E; Chapter 50, Subchapters A - C; Chapter 55, Subchapters A and B; and Chapter 80, §§80.3, 80.5, and 80.251 are obsolete and no longer needed because no applications that were declared administratively complete before September 1, 1999 and thus subject to these rules remain pending with the commission (June 28, 2019, issue of the Texas Register (44 TexReg 3304)). As a result, the commission adopts, in a concurrent rulemaking, the repeal of obsolete rules in Chapters 39, 50, 55, and 80 (Rule Project Number 2019-119-039-LS) which then necessitates updating other rules, primarily to remove obsolete text and update cross-references. Additionally, on August 14, 2019, the commission determined that the rules regarding voluntary emission reduction permits in 30 TAC Chapter 116 are also obsolete and no longer needed because the expiration dates and application deadlines in those rules have passed (August 30, 2019, issue of the Texas Register (44 TexReg 4750)). The repeal of the obsolete rules in Chapter 116, in which revisions to the State Implementation Plan (SIP) are not necessary, will be addressed in a separate rulemaking (Rule Project Number 2020-001-116-AI).

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §§50.102, 50.113, 50.131, and 50.139 remove obsolete text and make grammatical corrections.

The commission also adopts, in a concurrent rulemaking, amendments to 30 TAC Chapters 39, 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary (Rule Project Number 2019-120-039-LS).

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as grammatical or reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§50.102, Applicability

The commission adopts amended §50.102(a) to remove references to text that refers to obsolete rules concurrently adopted for repeal. Section 50.102(c) is amended to remove obsolete text.

§50.113, Applicability and Action on Application

The commission adopts to remove obsolete text from §50.113(a) that refers to rules concurrently adopted for repeal. Section 50.113(d)(2) is amended to remove obsolete text.

§50.131, Purpose and Applicability

The commission adopts amended §50.131(b) to remove obsolete text concurrently adopted for repeal.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§50.102, 50.113, 50.131, and 50.139 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking removes obsolete text to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §§50.102, 50.113, 50.131, and 50.139 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the adopted amendments affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Sections 50.102, 50.113, 50.131, and 50.139 are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER E. PURPOSE, APPLICABILITY, AND DEFINITIONS

30 TAC §50.102

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air; and THSC, §382.059, which authorized certain permit applications to be filed prior to September 1, 2001. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001616

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER F. ACTION BY THE COMMISSION

30 TAC §50.113

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air; and THSC, §382.059, which authorized certain permit applications to be filed prior to September 1, 2001. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001617

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER G. ACTION BY THE EXECUTIVE DIRECTOR

30 TAC §50.131, §50.139

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001618

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

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

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the repeal of §§55.1, 55.3, 55.21, 55.23, 55.25 - 55.27, 55.29, and 55.31 without changes to the proposal as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6753). The rules will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The rules in Chapter 55, Subchapters A and B were initially adopted to be effective June 6, 1996 (May 28, 1996, issue of the Texas Register (21 TexReg 4742)). In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, including those in Chapter 55, Subchapters A and B.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

Subchapter A: Applicability and Definitions

The commission adopts the repeal of §55.1 and §55.3. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter B: Hearing Requests, Public Comment

The commission adopts the repeal of §§55.21, 55.23, 55.25 - 55.27, 55.29, and 55.31. These rules apply to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeal of §§55.1, 55.3, 55.21, 55.23, 55.25 - 55.27, 55.29, and 55.31 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking repeals obsolete rules to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted repeal of §§55.1, 55.3, 55.21, 55.23, 55.25 - 55.27, 55.29, and 55.31 does not exceed an express requirement of state law or a requirement of a delegation agreement, and the rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of the Texas Health and Safety Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted repeal of §§55.1, 55.3, 55.21, 55.23, 55.25 - 55.27, 55.29, and 55.31 is procedural in nature and will not burden private real property. The adopted rulemaking does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER A. APPLICABILITY AND DEFINITIONS

30 TAC §55.1, §55.3

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001597

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER B. HEARING REQUESTS, PUBLIC COMMENT

30 TAC §§55.21, 55.23, 55.25 - 55.27, 55.29, 55.31

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001598

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER E. PUBLIC COMMENT AND PUBLIC MEETINGS

30 TAC §55.154, §55.156

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §55.154 and §55.156.

The commission adopts the amendments to §55.154 and §55.156 without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6756).

The adopted amendments to §55.154(c), (c)(3) and (4), (e), and (f) and §55.156(a), (c), and (f) will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission is adopting amendments to 30 TAC Chapters 39, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary. Section 55.154 and §55.156 include text that is now obsolete, and this rulemaking updates or removes that text.

Concurrently with this rulemaking, the commission adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals (Rule Project Number 2019-121-033-LS). In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing, but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Federal Clean Air Act, §110(l)

Section by Section Discussion

As part of this rulemaking, the commission adopts non-substantive changes, such as grammatical corrections. Since, these changes are non-substantive, the changes are not specifically discussed in this preamble.

Subchapter E: Public Comment and Public Meetings

§55.154, Public Meetings

The commission adopts amended §55.154(c) and (e) to update the reference from the commission's Office of Public Assistance to commission's Office of the Chief Clerk. The commission adopts amended §55.154(c)(3) and (4) to remove obsolete text because no applications filed prior to June 24, 2010 remain pending for commission review. The commission also adopts amended §55.154(f) to replace the obsolete reference to a tape recording with a reference to an audio recording.

§55.156, Public Comment Processing

The commission adopts amended §55.156(a) to remove the reference to the commission's Office of Public Assistance, which no longer exists. The commission adopts amended §55.156(c) to update the reference from the commission's Office of Public Assistance to the director of the External Relations Division. In addition, the commission adopts amended §55.156(f)(1) to remove obsolete text because no applications filed prior to June 24, 2010 remain pending for commission review.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §55.154 and §55.156 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do the amendments 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. Rather, this rulemaking removes obsolete text and updates agency references to ensure there is no confusion regarding the applicable rules for public participation for certain air quality permit applications.

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 adopted amendments to §55.154 and §55.156 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §55.154 and §55.156 are procedural in nature and will not burden private real property. The adopted amendments do not affect private property in a manner that restricts or limits an owner's right to the property that will otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendments do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

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

Effect on Sites Subject to the Federal Operating Permits Program

The adopted amendments to §55.154 and §55.156 will not require any changes to outstanding federal operating permits.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments are adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions, which requires state agencies to adopt procedural rules; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state.

The adopted amendments implement THSC, §382.056.

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 April 24, 2020.

TRD-202001605

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

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

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§55.201, 55.209, 55.253, and 55.254.

The amendments to §§55.201, 55.209, and 55.254 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6760) and, therefore, will not be republished. The amendment to §55.253 is adopted with change to the proposed text, and therefore, will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

On June 12, 2019, the commission determined that the rules in 30 TAC Chapter 39, Subchapters A - E; Chapter 50, Subchapters A - C; Chapter 55, Subchapters A and B; and Chapter 80, §§80.3, 80.5, and 80.251 are obsolete and no longer needed because no applications that were declared administratively complete before September 1, 1999 and thus subject to these rules remain pending with the commission (June 28, 2019, issue of the Texas Register (44 TexReg 3304)). As a result, the commission adopts, in a concurrent rulemaking, the repeal of obsolete rules in Chapters 39, 50, 55, and 80 (Rule Project Number 2019-119-039-LS) which then necessitates updating other rules, primarily to remove obsolete text and update cross-references. Additionally, on August 14, 2019, the commission determined that the rules regarding voluntary emission reduction permits in 30 TAC Chapter 116 are also obsolete and no longer needed because the expiration dates and application deadlines in those rules have passed (August 30, 2019, issue of the Texas Register (44 TexReg 4750)). The repeal of the obsolete rules in Chapter 116, in which revisions to the State Implementation Plan (SIP) are not necessary, is addressed in a separate rulemaking project (Rule Project Number 2020-001-116-AI).

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §§55.201, 55.209, 55.253, and 55.254 remove or update obsolete text.

The commission also adopts, in a concurrent rulemaking, amendments to 30 TAC Chapters 39, 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary (Rule Project Number 2019-120-039-LS).

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as grammatical corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§55.201, Requests for Reconsideration or Contested Case Hearing

The commission adopts amended §55.201(i)(3)(A) to remove the reference to voluntary emission reduction permits because the commission no longer issues these permits.

§55.209, Processing Requests for Reconsideration and Contested Case Hearing

The commission adopts amended §55.209(d) to update the reference from the commission's Office of Public Assistance to the External Relations Division.

§55.253, Public Comment Processing

The commission adopts amended §55.253(a) to remove the outdated reference to the commission's Office of Public Assistance, which no longer exists. In addition, the commission adopts to remove obsolete text in §55.253(b)(1), and re-designate existing §55.253(b)(1)(A) and (B) as §55.253(b)(1) and (2). Additionally, the commission adopts to re-designate existing §55.253(b)(2) as §55.253(c).

The commission also amends adopts amended re-designated §55.253(c) to update the references from the commission's Office of Public Assistance and designated office to the Office of Chief Clerk or the executive director. At adoption, the commission amends §55.253(c) to replace "APA" with "Texas Administrative Procedure Act."

§55.254, Hearing Request Processing

The commission adopts amended §55.254(e) to update the reference from the commission's Office of Public Assistance to the External Relations Division.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§55.201, 55.209, 55.253, and 55.254 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking removes obsolete text to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §§55.201, 55.209, 55.253, and 55.254 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §§55.201, 55.209, 55.253, and 55.254 do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the amendments affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Sections 55.201, 55.209, 55.253, and 55.254 are not applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER F. REQUESTS FOR RECONSIDERATION OR CONTESTED CASE HEARING

30 TAC §55.201, §55.209

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendments are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air; and THSC, §382.059, which authorized certain permit applications to be filed prior to September 1, 2001. In addition, the amendments are adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001619

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER G. REQUESTS FOR CONTESTED CASE HEARING AND PUBLIC COMMENT ON CERTAIN APPLICATIONS

30 TAC §55.253, §55.254

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

§55.253.Public Comment Processing.

(a) The chief clerk shall deliver or mail to the applicant, the executive director, the public interest counsel, and the Alternative Dispute Resolution Office, copies of all documents filed with the chief clerk in response to public notice of an application.

(b) The commission may designate an agency office to process public comment under this subsection.

(1) If the application and timely hearing requests are considered by the commission, the designated office will prepare any required response to public comment, no later than ten days before the commission meeting at which the commission will evaluate the hearing requests. The response shall be made available to the public and filed with the chief clerk.

(2) If the application is approved by the executive director under Chapter 50, Subchapter G of this title (relating to Action by the Executive Director), any required response to public comment should be made no later than the time of the executive director's action on the application.

(c) The Office of Chief Clerk or the executive director shall hold a public meeting when there is a significant degree of public interest or when otherwise appropriate to assure adequate public participation. A public meeting is intended for the taking of public comment and is not a contested case under the Texas Administrative Procedure Act. The applicant shall attend any such public meeting held by the Office of the Chief Clerk or the executive director. The executive director shall respond to public comment either by giving an immediate oral response at the public meeting or by preparing a written response. The response shall be made available to the public.

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 April 24, 2020.

TRD-202001620

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 60. COMPLIANCE HISTORY

30 TAC §60.1

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §60.1.

The amendment to §60.1 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6766). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are adopted in new Chapter 39, Subchapter P. The adopted amendment to §60.1 removes an obsolete cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

The commission adopts non-substantive changes, such as grammatical and reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§60.1, Compliance History

The commission adopts amended §60.1(a)(8) to remove the references to §50.39 (Motion for Reconsideration), which is concurrently adopted for repeal.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §60.1 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking removes an obsolete cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §60.1 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §60.1 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the amendment affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 60.1 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on applicable requirements is expected for sites subject to the Federal Operating Permits (FOP) Program. However, sites subject to the FOP Program are subject to the requirements of Chapter 60 and permit holders should review any rule changes for how compliance history information may be used in agency processes.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §5.753, which authorizes the commission to develop standards for evaluating and using the compliance history; TWC, §5.754, which authorizes the commission to adopt rules that establish standards for classifications of compliance history; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The amendment implements TWC, §§5.013, 5.102, 5.103, 5.122, 5.753, 5.754, 26.011, and 27.019, and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001621

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 70. ENFORCEMENT

SUBCHAPTER C. ENFORCEMENT REFERRALS TO SOAH

30 TAC §70.109

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §70.109.

The amendment to §70.109 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6770). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §70.109 updates a cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

The commission adopts non-substantive changes, such as grammatical or reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§70.109, Referral to SOAH

The commission adopts amended §70.109 to update the cross-reference from §80.5, which is concurrently adopted for repeal, to §80.6.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §70.109 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking removes an obsolete cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §70.109 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §70.109 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the amendment affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 70.109 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on applicable requirements is expected for sites subject to the Federal Operating Permits (FOP) Program. However, sites subject to the FOP Program are still subject to the requirements of Chapter 70 and permit holders should review any rule changes for how they may affect site operations.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells; and TWC, Chapter 7, which provides the commission's enforcement authority. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendment is adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; TWC, Chapter 7; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001622

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 80. CONTESTED CASE HEARINGS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the repeal of §§80.3, 80.5, and 80.251 without changes to the proposal as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6772). The rules will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

Sections 80.3, 80.5, and 80.251 were initially adopted to be effective June 6, 1996 (May 28, 1996, issue of the Texas Register (21 TexReg 4763)). In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, including §§80.3, 80.5, and 80.251.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

Subchapter A: General Rules

§80.3, Judges

The commission adopts the repeal of §80.3. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

§80.5, Referral to SOAH

The commission adopts the repeal of §80.5. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Subchapter F: Post Hearing Procedures

§80.251, Judge's Proposal for Decision

The commission adopts the repeal of §80.251. This rule applies to permitting applications that were administratively complete before September 1, 1999. No pending applications meet that criterion.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeal of §§80.3, 80.5, and 80.251 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking repeals obsolete rules to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted repeal of §§80.3, 80.5, and 80.251 does not exceed an express requirement of state law or a requirement of a delegation agreement, and the rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of the Texas Health and Safety Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted repeal of §§80.3, 80.5, and 80.251 is procedural in nature and will not burden private real property. The adopted rulemaking does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER A. GENERAL RULES

30 TAC §80.3, §80.5

Statutory Authority

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001600

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER F. POST HEARING PROCEDURES

30 TAC §80.251

Statutory Authority

The repeal is 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; 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; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The repeal is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air.

The rulemaking implements TWC, §§5.013, 5.102, 5.103, 26.011, and 27.019; and THSC, §361.024 and §382.017.

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 April 24, 2020.

TRD-202001601

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 80. CONTESTED CASE HEARINGS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§80.109, 80.117, 80.118, and 80.151.

The amendments to §80.109 and §80.117 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6775) and, therefore, will not be republished. The amendments to §80.118 and §80.151 are adopted with changes to the proposed text and will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §§80.109, 80.117, 80.118, and 80.151 remove obsolete text and update text to ensure statutory consistency.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as grammatical or reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§80.109, Designation of Parties

The commission adopts amended §80.109(b)(5) to remove a cross-reference to §55.29 (Determination of Affected Person), which is concurrently adopted for repeal.

§80.117, Order of Presentation

The commission adopts amended §80.117(c)(1)(B) to correct a drafting error to ensure the rule is consistent with Texas Government Code, §2003.047(i-1)(2), added by Senate Bill (SB) 709 (84th Texas Legislature, 2015). Rulemaking to implement SB 709, including the amendment to §80.117, was adopted by the commission on December 9, 2015 (December 25, 2015, issue of the Texas Register (40 TexReg 9641, 9680)).

§80.118, Administrative Record

The commission adopts amended §80.118(b) to remove a cross-reference to §80.5 (Referral to SOAH), which is concurrently adopted for repeal. At adoption, the commission amends §80.118(b) to conform the reference to Texas Register style requirements.

§80.151, Discovery Generally

The commission adopts amended §80.151 to remove §80.151(b)(1)(A) and re-letter subsequent subparagraphs accordingly. At adoption, the commission amends §80.151(a) to correct the cite to the Texas Administrative Procedure Act and §80.151(b)(1) to correct a typographical error in the reference to the State Office of Administrative Hearings' rule.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§80.109, 80.117, 80.118, and 80.151 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §§80.109, 80.117, 80.118, and 80.151 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §§80.109, 80.117, 80.118, and 80.151 do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendments do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the amendments affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Sections 80.109, 80.117, 80.118, and 80.151 are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER C. HEARING PROCEDURES

30 TAC §§80.109, 80.117, 80.118

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.115, which provides authority regarding persons affected in commission hearings; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendments are also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendments are adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

§80.118.Administrative Record.

(a) Except as provided in subsection (c) of this section, in all permit hearings, the record in a contested case includes, at a minimum, the following certified copies of documents:

(1) the executive director's final draft permit, including any special provisions or conditions;

(2) the executive director's preliminary decision, or the executive director's decision on the permit application, if applicable;

(3) the summary of the technical review of the permit application;

(4) the compliance summary of the applicant;

(5) copies of the public notices relating to the permit application, as well as affidavits regarding public notices; and

(6) any agency document determined by the executive director to be necessary to reflect the administrative and technical review of the application.

(b) For purposes of referral to the State Office of Administrative Hearings (SOAH) under §80.6 of this title (relating to Referral to SOAH), of applications filed before September 1, 2015, or applications not referred under Texas Water Code, §5.556 or §5.557, the chief clerk's case file shall contain the administrative record as described in subsection (a) of this section.

(c) In all hearings on permit applications filed on or after September 1, 2015, which are referred for hearing under Texas Water Code, §5.556 or §5.557, the administrative record in a contested case filed by the chief clerk with SOAH includes the following certified copies of documents:

(1) the items in subsection (a)(1) - (6) of this section, including technical memoranda, that demonstrate the draft permit meets all applicable requirements and, if issued, would protect human health and safety, the environment, and physical property; and

(2) the application submitted by the applicant, including revisions to the original submittal.

(d) For purposes of referral to SOAH under §80.6 of this title for hearings regarding permit applications filed on or after September 1, 2015, that are referred under Texas Water Code, §5.556 and §5.557, the applicant shall provide two duplicates of the original application, including all revisions to the application, to the chief clerk for inclusion in the administrative record in the format and time required by the procedures of the commission, no later than:

(1) for applications referred by the commission, 10 days after the chief clerk mails the commission order; or

(2) for applications referred by the applicant or executive director, 10 days after the chief clerk mails the executive director's response to comments.

(e) For purposes of referral to SOAH under §80.6 of this title for hearings regarding permit applications filed on or after September 1, 2015, that are referred under Texas Water Code, §5.556 and §5.557, the chief clerk shall file the administrative record with SOAH at least 30 days prior to the hearing.

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

Filed with the Office of the Secretary of State on April 24, 2020.

TRD-202001623

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER D. DISCOVERY

30 TAC §80.151

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.115, which provides authority regarding persons affected in commission hearings; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; and THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air. In addition, the amendment is also adopted under Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules; and Texas Government Code, §2003.047, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

§80.151.Discovery Generally.

(a) Discovery shall be conducted according to the Texas Rules of Civil Procedure, unless commission rules provide or the judge orders otherwise. The Texas Rules of Civil Procedure shall be interpreted consistently with this chapter, the Texas Water Code, the Texas Health and Safety Code, and the Texas Administrative Procedure Act. Drafts of prefiled testimony are not discoverable.

(b) Discovery in contested case hearings using prefiled testimony.

(1) This subsection is applicable to contested case hearings for applications which are subject to the jurisdiction of the State Office of Administrative Hearings (SOAH) under 1 TAC §155.51 (relating to Jurisdiction), except for:

(A) water ratemaking proceedings; and

(B) sewer ratemaking proceedings.

(2) All discovery on a party must be completed before the deadline for that party to submit its prefiled testimony.

(3) In cases where all parties share the same deadline for submission of prefiled testimony, a single deadline for completion of discovery shall apply to all parties.

(4) If parties have different deadlines for the submission of prefiled testimony, the deadline to complete discovery on a party shall be no later than the final deadline for that party to submit prefiled testimony. After a party's final deadline to submit its prefiled testimony in a contested case, that party is no longer subject to discovery from other parties in the case.

(5) The requirements of this subsection do not relieve a party's duty to supplement its discovery responses as required by Texas Rules of Civil Procedure, §193.5 and §195.6.

(c) All other contested case hearings are governed by this section as it existed immediately before the effective date of this section and the rule is continued in effect for that purpose.

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 April 24, 2020.

TRD-202001624

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 90. INNOVATIVE PROGRAMS

SUBCHAPTER A. INCENTIVE PROGRAMS

30 TAC §90.22

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §90.22.

The amendment to §90.22 is adopted without change to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6779) and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and these rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §90.22 updates a cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§90.22, Commission Action on an Application

The commission adopts amended §90.22(a) to update a cross-reference from Chapter 50, Subchapter B, which is concurrently adopted for repeal, to Chapter 50, Subchapter F.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §90.22 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking removes an obsolete cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §90.22 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §90.22 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that it is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the amendment affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 90.22 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapters M and Q; 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; 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; TWC, §5.115, which provides authority regarding persons affected in commission hearings; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules regarding the management and control of solid waste; THSC, §382.011, which authorizes the commission to control the quality of the state's air; THSC, §382.017, which authorizes the commission to adopt any rules necessary to carry out its powers and duties to control the quality of the state's air; and Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The rulemaking implements TWC, Chapter 5, Subchapters M and Q; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024 and §382.011.

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 April 24, 2020.

TRD-202001625

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 101. GENERAL AIR QUALITY RULES

SUBCHAPTER H. EMISSIONS BANKING AND TRADING

DIVISION 1. EMISSION CREDIT PROGRAM

30 TAC §101.306

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §101.306.

The commission adopts the amendment to §101.306 without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6782). The rule will not be republished.

The adopted amendment to §101.306 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission adopts amendments to 30 TAC Chapters 39, 55, and 116 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary. The adopted amendment to §101.306 updates cross-references to current applicable rules.

Concurrently with this rulemaking, the commission adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals (Rule Project Number 2019-121-033-LS). In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing, but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Federal Clean Air Act, §110(l)

All revisions to the SIP are subject to the EPA's finding that the revision will not interfere with any applicable requirement concerning attainment and reasonable further progress of the national ambient air quality standards, or any other requirement of the Federal Clean Air Act (74 United States Code (USC), §7410(l)). This statute has been interpreted to be whether the revision will "make air quality worse" (Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), cited with approval in Galveston-Houston Association for Smog Prevention (GHASP) v. U.S. EPA, 289 Fed. Appx. 745, 2008 WL 3471872 (5th Cir.)). Because procedural rules have no direct nexus with air quality, and because the current applicable public participation rules are approved as part of the Texas SIP, the EPA should find that there is no backsliding from the current SIP and that this SIP revision complies with 42 USC, §7410(l).

Section Discussion

Subchapter H: Emissions Banking and Trading

Division 1: Emission Credit Program

§101.306, Emission Credit Use

The commission adopts amended §101.306(c)(2) to update the cross-references to 30 TAC Chapter 50.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §101.306 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules.

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 adopted amendment of §101.306 does not exceed an express requirement of state law or a requirement of a delegation agreement, and the rulemaking was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the statutory authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §101.306 is procedural in nature and will not burden private real property. The adopted amendment does not affect private property in a manner that restricts or limits an owner's right to the property that will otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that the adopted rule is identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 101.306 is an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program). However, the adopted amendment to update cross-references is procedural in nature and therefore no effect on sites subject to the Federal Operating Permits Program is expected. The adopted amendment will not require any changes to outstanding federal operating permits.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and TWC, §5.122, which authorizes the commission to delegate to the executive director the authority to act on an application. The amendment is also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; and THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. In addition, the amendment is adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions, which requires state agencies to adopt procedural rules; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state.

The adopted amendment implements TWC, §5.122; and THSC, §382.011 and §382.012.

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 April 24, 2020.

TRD-202001606

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION

SUBCHAPTER B. NEW SOURCE REVIEW PERMITS

DIVISION 1. PERMIT APPLICATION

30 TAC §116.111, §116.112

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §116.111 and §116.112.

The commission adopts the amendments to §116.111 and §116.112 without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6785). The rules will not be republished.

The adopted amendments to §116.111 and §116.112(a) will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the State Implementation Plan (SIP).

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission adopts amendments to Chapters 39, 55, and 101 to make necessary changes due to the adopted repeals for which revisions to the SIP are also necessary. The adopted amendments to §116.111 and §116.112 update or remove obsolete text and update cross-references to current applicable rules.

Concurrently with this rulemaking, the commission adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals (Rule Project Number 2019-121-033-LS). In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing, but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Federal Clean Air Act, §110(l)

Section by Section Discussion

Subchapter B: New Source Review Permits

Division 1: Permit Application

§116.111, General Application

The commission removes obsolete text in §116.111(b) referring to requirements for applications declared administratively complete before September 1, 1999. Portions of §116.111(b)(2) will be re-designated as §116.111(c).

§116.112, Distance Limitations

The commission removes obsolete text in §116.112(a) which references Chapter 39, Subchapters A and D, which are concurrently adopted for repeal.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to remove text in §116.111 and §116.112 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does the rulemaking 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. Rather, this rulemaking removes obsolete text and proposes that the EPA approve the rules as revisions to the SIP to ensure there is no confusion regarding the applicable rules for public participation for air quality permit applications.

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 adopted amendments to §116.111 and §116.112 do not exceed an express requirement of state law or a requirement of a delegation agreement, and the amendments were not developed solely under the general powers of the agency, but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to remove text in §116.111 and §116.112 is procedural in nature and will not burden private real property. The adopted rulemaking does not affect private property in a manner that restricts or limits an owner's right to the property that will otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted rulemaking does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found that the rules are identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 116.111 and §116.112 are applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program). However, the text adopted to be removed from §116.111 and §116.112 is procedural in nature and therefore no effect on sites subject to the Federal Operating Permits Program is expected. The adopted amendments will not require any changes to outstanding federal operating permits.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendments are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments are adopted under Texas Government Code, §2001.004, concerning Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions, which requires state agencies to adopt procedural rules; and §2003.047, concerning Hearings for Texas Commission on Environmental Quality, which authorizes the State Office of Administrative Hearings to conduct hearings for the commission; and the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state.

The adopted amendments implement THSC, §382.056.

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 April 24, 2020.

TRD-202001607

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 205. GENERAL PERMITS FOR WASTE DISCHARGES

SUBCHAPTER A. GENERAL PERMITS FOR WASTE DISCHARGES

30 TAC §205.3

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §205.3.

The amendment to §205.3 is adopted without change to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6789) and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 285, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §205.3 updates obsolete cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

The commission adopts non-substantive changes, such as grammatical or reference corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§205.3, Public Notice, Public Meetings, and Public Comment

The commission adopts amended §205.3(c)(1) and (d)(4) to update the cross-reference from §39.11, which is concurrently adopted for repeal, to §39.411.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §205.3 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §205.3 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §205.3 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 205.3 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 26.040.

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 April 24, 2020.

TRD-202001626

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 285. ON-SITE SEWAGE FACILITIES

SUBCHAPTER B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM

30 TAC §285.10

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §285.10.

The amendment to §285.10 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6792). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 294, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §285.10 updates an obsolete cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

The commission adopts non-substantive changes, such as, grammatical corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§285.10, Delegation to AuthorizedAgents

The commission adopts amended §285.10(b)(9) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision).

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §285.10 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §285.10 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §285.10 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 285.10 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, and 26.011; and THSC, Chapter 366.

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 April 24, 2020.

TRD-202001627

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 294. PRIORITY GROUNDWATER MANAGEMENT AREAS

SUBCHAPTER E. DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREAS

30 TAC §294.42

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §294.42.

The amendment to §294.42 is adopted with changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6796). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission is concurrently adopting amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 305, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §294.42 removes an obsolete cross-reference.

The commission adopts, in a concurrent rulemaking, amendments to 30 TAC Chapters 39, 55, 101, and 116 to make necessary changes due to the adopted repeals for which revisions to the State Implementation Plan are also necessary (Rule Project Number 2019-120-039-LS).

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§294.42, Commission Action Concerning PGMA Designation

The commission adopts amended §294.42(a) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision).

At adoption, the commission amends §294.42(b)(1) to remove "Texas" from the name of "State Office of Administrative Hearings."

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §294.42 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §294.42 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §294.42 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is not a rulemaking identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will the adopted amendment affect any action or authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rulemaking is not subject to the Texas Coastal Management Program (CMP).

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 294.42 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011; and TWC, Chapter 35.

§294.42.Commission Action Concerning PGMA Designation.

(a) If the executive director concludes in the report that the area studied is not a priority groundwater management area (PGMA), no further action by the executive director or the commission is necessary. However, any person may file a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).

(b) If the executive director recommends that the area be designated a PGMA or added to an existing PGMA, or if the commission overturns the executive director's conclusion in subsection (a) of this section, the commission shall consider the executive director's PGMA report and recommendations developed under §294.41 of this title (relating to Priority Groundwater Management Area Identification, Study, and Executive Director's Report Concerning Designation) using the following procedures.

(1) The commission shall hold an evidentiary hearing. On behalf of the commission, the executive director may refer the evidentiary hearing directly to the State Office of Administrative Hearings (SOAH). At the evidentiary hearing, the commission or the administrative law judge shall consider:

(A whether the proposed PGMA should be designated or added to an existing PGMA;

(B) whether one or more groundwater conservation districts (GCDs) should be created within all or part of the proposed PGMA, whether all or part of the land in the PGMA should be added to an existing GCD, or whether a combination of these actions should be taken; and

(C) the feasibility and practicability of each GCD recommendation. To determine the feasibility and practicability of each GCD recommendation, the commission or the administrative law judge shall consider:

(i) whether the recommended GCD can effectively manage groundwater resources under the authorities provided in Texas Water Code (TWC), Chapter 36;

(ii) whether the boundaries of the recommended GCD provide for the effective management of groundwater resources; and

(iii) whether the recommended GCD can be adequately funded to finance required or authorized groundwater management planning, regulatory, and district-operation functions under TWC, Chapter 36.

(2) The evidentiary hearing shall be held in one of the counties in which the PGMA is proposed to be located or in the nearest convenient location if adequate facilities are not available in those counties.

(3) The chief clerk shall publish notice of the evidentiary hearing in at least one newspaper with general circulation in the area proposed for PGMA designation. The notice must be published no later than 30 days before the first date set for the hearing. Notice of the evidentiary hearing must include:

(A) if applicable, a statement of the general purpose and effect of designating the proposed PGMA;

(B) if applicable, a statement of the general purpose and effect of creating a new GCD in the proposed PGMA;

(C) if applicable, a statement of the general purpose and effect of adding all or part of the land in the proposed PGMA to an existing GCD;

(D) a map generally outlining the boundaries of the area being considered for PGMA designation or notice of the location at which a copy of the map may be examined or obtained;

(E) a statement that the executive director's report on the proposed PGMA is available for inspection during regular business hours at the commission's main office in Austin, Texas, at regional offices of the commission which include territory within the proposed PGMA, and on the agency's website;

(F) the name and address of each public library, each county clerk's office, and each GCD that has been provided copies of the executive director's report; and

(G) the date, time, and place of the hearing.

(4) The chief clerk shall also mail written notice of the date, time, place, and purpose of the hearing to the governing body of each county, regional water planning group, adjacent GCD, municipality, river authority, water district, or other entity which supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission, and of each irrigation district, located either in whole or in part in the PGMA or proposed PGMA. This notice shall be mailed at least 30 days before the date set for the hearing.

(5) The evidentiary hearing must be conducted within 75 days of the date that notice was provided under paragraph (3) of this subsection. At the hearing, the commission or the administrative law judge shall hear testimony and receive evidence from affected persons, and consider the executive director's report and supporting information. The commission or the administrative law judge may request additional information from any source if further information is considered necessary to make a decision. If the commission or administrative law judge requests additional information, the parties will be allowed to examine this information and present any necessary evidence related to the additional information.

(6) If the hearing is remanded to SOAH, the administrative law judge shall at the conclusion of the hearing, issue a proposal for decision stating findings, conclusions, and recommendations. The administrative law judge shall file findings and conclusions with the chief clerk.

(c) The commission shall consider the findings, conclusions, and recommendations determined from the evidentiary hearing. The commission shall order one or more of the following actions.

(1) Except as provided in paragraph (3) of this subsection, if the commission decides that an area should be designated as a PGMA or adds the area to an existing PGMA, the commission shall designate and delineate the boundaries of the PGMA.

(2) If the commission designates the area as a PGMA or adds the area to an existing PGMA, the order must recommend that the area be covered by a GCD by either creation of one or more new GCDs, by addition of the land in the PGMA to one or more existing GCDs, or by a combination of these actions. The commission shall give preference to GCD boundaries that are coterminous with the boundaries of the PGMA, but may recommend GCD boundaries based upon existing political subdivision boundaries to facilitate creation of a GCD.

(3) If the commission does not designate the area as a PGMA, the commission shall issue an order stating that the PGMA shall not be designated.

(4) If the commission finds that a GCD created under TWC, Chapter 36 would not be feasible or practicable for the protection of groundwater resources in the PGMA, the commission may recommend in its report to the legislature under TWC, §35.018, the creation of a special district or amendment of an existing district's powers and authorities.

(5) The designation of a PGMA may not be appealed nor may it be challenged under TWC, §5.351 or Texas Government Code, §2001.038.

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 April 24, 2020.

TRD-202001628

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 295. WATER RIGHTS, PROCEDURAL

SUBCHAPTER C. NOTICE REQUIREMENTS FOR WATER RIGHT APPLICATIONS

30 TAC §295.159

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §295.159 with changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6799). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

A petition for rulemaking was filed with the commission on February 5, 2019, by Lloyd Gosselink Rochelle & Townsend, P.C. on behalf of the City of Wichita Falls (petitioner). The petitioner requested that §295.159 be amended to include an exception from the notice requirements for orders to extend the deadline to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water. This rulemaking was opened pursuant to the commission's order dated March 28, 2019, in which the commission granted the petition considered at a March 27, 2019, public meeting (Project No. 2019-098-PET-NR). The commission's order required an opportunity for stakeholder involvement concerning the issues raised in the petition prior to rule proposal. Therefore, an informal stakeholder meeting was held at the TCEQ on June 13, 2019, and comments were accepted by the commission until June 27, 2019. All comments were considered.

Section Discussion

§295.159, Notice of Extension of Time to Commence or Complete Construction

The commission adopts §295.159(c) which provides that the notice requirements in §295.159(a) and (b) do not apply to a permit for construction of a reservoir designed for storage of more than 50,000 acre-feet of water. Existing §295.159(a) requires published notice and mailed notice (to the same persons to whom notice of the original application for the permit was mailed) for a request for an extension of time to construct if the new date of proposed commencement of construction is more than four years from the date of issuance of the permit or if the new proposed completion time is more than five years from the date of completion required in the original permit. Existing §295.159(b) states that the notice must provide that the commission shall consider whether the appropriation shall be forfeited for failure by the applicant to demonstrate sufficient due diligence and justification for delay.

Texas Water Code (TWC), §11.145 provides that the commission may, by entering an order of record, extend the time for beginning construction of a reservoir, but does not require notice for such extensions. TWC, §11.146, provides that if a permittee fails to begin construction within the time specified in TWC, §11.145, the permittee forfeits all rights to the permit, subject to notice and hearing as prescribed by this section. However, TWC, §11.146(g), provides an exemption from forfeiture under this section for a permit for construction of a reservoir designed for the storage of more than 50,000 acre-feet of water. Therefore, adopted §295.159(c) providing for exempting such reservoirs from notice for extension of time for commencement or completion of construction is consistent with the TWC. In existing subsection (a), the commission corrected a typographical error by deleting a stray sentence fragment.

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, because it does not meet the definition of a "Major environmental rule" as defined in that statute. The definition of "Major environmental rule" in Texas Government Code, §2001.0225(g)(3), 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 sector of the state."

The purpose of the adopted rule is to amend §295.159, which requires mailed and published notice for an application to extend the deadline for commencement of construction more than four years or to extend the deadline for completion more than five years. This adopted amendment to §295.159 includes an exception from the notice requirements for applications to extend the deadline to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

The specific intent of the adopted rule is to exempt requests for commencement and completion of large reservoirs, 50,000 acre-feet or more, from notice requirements due to the complexity of constructing large reservoirs and the need for other approvals such as from the Corps of Engineers. Allowing the permittees to proceed without the need for notice is a more efficient and reasonable approach to obtaining needed water supplies for a growing state.

Additionally, the amendment to §295.159 is consistent with TWC, §11.145 and §11.146. TWC, §11.145, does not require that the commission provide notice of amendments extending the time for commencement or completion of construction of a reservoir if the permit is to construct a reservoir designed for storage of more than 50,000 acre-feet of water. TWC, §11.146, provides an exception from forfeiture or cancellation of a permit for failure to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

Thus, the specific intent of this rulemaking is not 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 sector of the state. The adopted rulemaking is a procedural rule, is not a "Major environmental rule," and a full Regulatory Impact Analysis (RIA) is not required.

Even if the adopted rule was a "Major environmental rule," Texas Government Code, §2001.0225, applies to a "Major environmental rule" which exceed standards set by federal law unless the rule is specifically required by state law; exceed requirements of a delegation agreements between state and federal governments to implement a state and federal program; or are adopted solely under the general powers of the agency instead of under a specific state law. This rulemaking is not governed by federal law, does not exceed state law, does not come under a delegation agreement or contract with a federal program, and is not being adopted solely under the TCEQ's general rulemaking authority. It is an amendment of an existing rule that was adopted under TWC, §11.145 and §11.146, as previously discussed. It is not based solely under the general powers of the agency instead of under a specific state law.

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

Takings Impact Assessment

The commission evaluated this adopted amendment and performed analysis of whether the adopted rule constitutes a takings under Texas Government Code, Chapter 2007.

This adopted rulemaking will amend §295.159, which requires mailed and published notice for an application to extend the deadline for commencement of construction more than four years or to extend the deadline for completion more than five years. This adopted amendment to §295.159 includes an exception from this notice requirement for applications to extend the deadline to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

The specific intent of the adopted rule is to allow commencement and completion of large reservoirs, 50,000 acre-feet or more, to be exempt from notice requirements due to the complexity of constructing large reservoirs and the need for other approvals such as from the Corps of Engineers. Allowing the permittees to proceed without the need for notice and the possibility of another hearing is a more efficient and reasonable approach to obtaining needed water supplies for a growing state.

Additionally, the amendment to §295.159 is consistent with TWC, §11.145 and §11.146. TWC, §11.145, does not require that the commission provide notice of amendments extending the time for commencement or completion of construction of a reservoir if the permit is to construct a reservoir designed for storage of more than 50,000 acre-feet of water. TWC, §11.146, provides an exception from forfeiture or cancellation of a permit for failure to commence of complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

This rulemaking will substantially advance the stated purposes of efficiency and consistency by amending §295.159 to allow an exemption from notice for applications for extension of time to commence and complete the reservoir if the reservoir is greater than 50,000 acre-feet.

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to this adopted rulemaking because there are no burdens imposed on private real property by the adopted rule. This rulemaking is an administrative rule that relates to procedural requirements for an application for extension of time to commence and complete the construction of an already permitted reservoir. The rulemaking does not affect 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 rights to the property that would otherwise exist in the absence of the governmental action.

Thus, Texas Government Code, Chapter 2007, does not apply to this adopted rule because the rulemaking does not impact private real property.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program (CMP), and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process.

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

Public Comment

The commission offered a public hearing on December 3, 2019. The comment period closed on December 16, 2019. The commission received comments from the Brazos River Authority (BRA), the City of Wichita Falls (Wichita Falls), the North Texas Municipal Water District (NTMWD), and the Upper Trinity Water District (UTRWD).

BRA, Wichita Falls, NTMWD, and UTRWD supported the amendment.

Response to Comments

Comment

BRA commented that they support the rule changes to §295.159 and that the proposed change is consistent with TWC and will help to simplify the complex challenges associated with planning and constructing major reservoirs.

Response

The commission acknowledges this comment. The rule was not changed in response to this comment.

Comment

UTRWD commented that they support the rule changes and that the amendment is necessary to avoid unnecessary regulatory burdens for water rights holders planning to construct major water supply reservoirs in Texas.

Response

The commission acknowledges this comment. The rule was not changed in response to this comment.

Comment

NTMWD commented that they support the rule changes and that the rulemaking will correct a rule that requires unnecessarily burdensome public notice requirements.

Response

The commission acknowledges this comment. The rule was not changed in response to this comment.

Comment

Wichita Falls commented that they support the proposed rulemaking and that the rulemaking prevents delays in the federal permitting process from unnecessarily extending the time and resources required for the state permitting process and reduces the processing burden on TCEQ staff.

Response

The commission acknowledges this comment. The rule was not changed in response to this comment.

Statutory Authority

This amendment is adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by the TWC, §5.103; 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; TWC, §5.105, which authorizes the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC; TWC, §5.013(a)(1) concerning the TCEQ's authority over water and water rights; TWC, §11.145, which provides requirements for commencement of construction of a reservoir; and TWC, §11.146, which provides forfeiture or cancellation of a water rights permit for inaction.

The adopted amendment implements TWC, §§5.013, 5.102, 5.103, 5.105, 11.145, and 11.146.

§295.159.Notice of Extension of Time to Commence or Complete Construction.

(a) If the new date of proposed commencement of construction is more than four years from the date of issuance of the permit, or if the new proposed completion time is more than five years from the date of completion required in the original permit, notice of an application for extension of time shall be mailed and published as required by the Texas Water Code, §11.132 and §11.143, and §295.151 of this title (relating to Notice of Application and Commission Action), §295.152 of this title (relating to Notice by Publication), and §295.153 of this title (relating to Notice by Mail). The chief clerk shall mail notice of the public hearing to the same persons to whom notice of the application for the permit was mailed. The applicant shall be required to publish notice of the hearing in the same manner in which an applicant for a water use permit is required to publish notice of an application. No other notice is required.

(b) The notice of any application for an extension of time to commence or complete construction must provide that the commission shall also consider whether the appropriation shall be forfeited for failure by the applicant to demonstrate sufficient due diligence and justification for delay.

(c) This section does not apply to a permit for construction of a reservoir designed for storage of more than 50,000 acre-feet of water. No notice shall be required for an extension of time to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

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 April 24, 2020.

TRD-202001572

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

For further information, please call: (512) 239-1806

SUBCHAPTER G. DESALINATION, PROCEDURAL

30 TAC §295.302

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §295.302.

The amendment to §295.302 is adopted with changes to the proposed text as published in the November 22, 2019, issue of the Texas Register (44 TexReg 7127). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

In 2015, the 84th Texas Legislature passed House Bill (HB) 2031. HB 2031 relates to the diversion, treatment, and use of marine seawater and the discharge of treated marine seawater and waste resulting from the desalination of marine seawater if: 1) the point of diversion is located less than three miles seaward of any point located on the coast of this state; or 2) the seawater contains a total dissolved solids concentration based on a yearly average of samples taken monthly at the water source of less than 20,000 milligrams per liter. As set out in Texas Water Code (TWC), §18.002(c), the legislation provided an alternative procedure for obtaining an authorization to divert marine seawater and did not affect the authority of a person to divert marine seawater from a bay or estuary under TWC, Chapter 11.

HB 2031 required the Texas Parks & Wildlife Department (TPWD) and the Texas General Land Office (GLO) to conduct a study to identify zones in the Gulf of Mexico that are appropriate for the diversion of marine seawater and the discharge of waste resulting from the desalination process. The commission must adopt rules designating diversion and discharge zones by September 1, 2020. Until such time as the commission adopts rules designating diversion and discharge zones, an applicant for a permit to divert marine seawater or discharge waste resulting from the desalination process must consult with the TPWD and the GLO regarding the point(s) of diversion and discharge.

TPWD and GLO completed their study entitled Marine Seawater Desalination Diversion and Discharge Zones Study in September 2018 and developed a map depicting the diversion and discharge zones which is available on the GLO website on the Coastal Resources Management Viewer. The diversion zones created are applicable only to marine seawater. TPWD and GLO did not designate zones in bays or arms of the Gulf of Mexico where seawater may be diverted.

This rulemaking implements the requirement in TWC, Chapter 18, for the commission to designate appropriate diversion zones by rule.

As part of this rulemaking, the commission adopts amendments to 30 TAC Chapter 297, Water Rights, Substantive; and 30 TAC Chapter 318, Marine Seawater Desalination Discharges, to designate appropriate diversion and discharge zones by rule.

Section Discussion

§295.302, Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater

The commission adopts the amendment to §295.302(k). Currently, §295.302(k) requires that an application for diversion of seawater from a bay or arm of the Gulf of Mexico for industrial purposes or for diversion of marine seawater from the Gulf of Mexico include documentation of the results of the consultation with the TPWD and the GLO regarding the point or points from which a facility the person proposes to construct may divert marine seawater or seawater. Adopted §295.302(k) requires that the application include documentation that the point(s) from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the TPWD and the GLO on the date that the application is submitted or documentation of the results of the consultation with the TPWD and the GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes. The commission changed the word "approved" to the word "identified" in §295.302(k)(1) to better reflect the actions taken by TPWD and GLO in developing the study and made a non-substantive typographic correction to §295.302(k)(2).

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 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. HB 2031 required TPWD and GLO to jointly conduct a study to identify zones in the Gulf of Mexico that are appropriate for the diversion of marine seawater and the discharge of waste resulting from the desalination of marine seawater. TPWD and GLO were required to submit a report on the results of the study to the commission, and the commission by rule is required to designate appropriate diversion zones and discharge zones. The stated purpose of HB 2031 is to "streamline the regulatory process for and reduce the time required for and cost of marine seawater desalination." HB 2031 further states that "{t}he purpose of this Act is not to hinder efforts to conserve or develop other surface water supplies but rather to more fully explore and expedite the development of all of this state's water resources in order to balance this state's supply and demand for water, which is one of the most precious resources of this state." Therefore, the intent is not to protect the environment or reduce risks to human health from environmental exposure, but instead to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and to streamline the process for these permits. The adopted rulemaking streamlines the process by authorizing documentation that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones approved by the TPWD and the GLO on the date that the application is submitted or documentation of the results of the consultation with the TPWD and GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes.

Second, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted amendment does 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 amendment will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted amendment 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 applicable 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 specific law." This rulemaking is not governed by federal law, does not exceed state law, does not come under a delegation agreement or contract with a federal program, and is not being adopted under the TCEQ's general rulemaking authority. This rulemaking is being adopted under specific state statutes enacted in HB 2031.

Takings Impact Assessment

The commission evaluated this adopted rulemaking and performed a preliminary assessment of whether the adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rule is to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and streamline the process for these permits. The adopted rule will substantially advance this stated purpose by authorizing documentation that the point(s) from which a facility the person proposes to construct for diversion of marine seawater are within the zones approved by the TPWD and the GLO on the date that the application is submitted or documentation of the results of the consultation with the TPWD and GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes.

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to the adopted rule because the rule does not impact private real property. In HB 2031, the legislature expressed that "{i}n this state, marine seawater is a potential new source of water for drinking and other beneficial uses. This state has access to vast quantities of marine seawater from the Gulf of Mexico." For marine seawater, there are no permanent water rights or real private property rights that have been granted for use of the water in the Gulf of Mexico. For seawater in a bay or arm of the Gulf of Mexico, few water rights have been granted for this water. There is no potential for harm to other water rights by this rulemaking. The burden on private real property rights will be nonexistent to minimal because of the amount of water in the Gulf of Mexico or a bay or arm of the Gulf of Mexico. Diversions of seawater in a bay or arm of the Gulf of Mexico are also limited to industrial water and water for municipal and domestic needs cannot be taken from a bay or arm of the Gulf of Mexico under Chapter 295, Subchapter G.

Consistency with the Coastal Management Program

The commission reviewed the adopted 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, must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rule in accordance with Coastal Coordination Act implementation rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies.

CMP goals applicable to the adopted rule include: 1) to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs); and, 2) to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone. CMP policies applicable to the adopted rule include: Impoundments and diversion of state water within 200 stream miles of the coast.

Promulgation and enforcement of this rule will not violate or exceed any standards identified in the applicable CMP goals and policies. The adopted rule is consistent with these CMP goals and policies because this rule does not create or have a direct or significant adverse effect on any CNRAs, and because the adopted rule requires diversion to be located in an approved diversion zone in the Gulf of Mexico or consultation with the TPWD and GLO regarding the location of any diversion point in a bay or arm of the Gulf of Mexico.

The commission invited public comment regarding the consistency with the coastal management program during the public comment period. The commission did not receive comments regarding the CMP.

Public Comment

The commission held a public hearing on December 17, 2019. The comment period closed on January 6, 2020. The commission received no comments.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), §5.013(a)(1) concerning the commission's general jurisdiction over water and water rights; TWC, §5.102, concerning the general powers of the commission; TWC, §5.103, concerning the adoption of rules by the commission; TWC, §5.105, concerning the commission's approval of general policy; TWC, Chapter 18, concerning marine seawater desalination projects; and TWC, §11.1405, concerning desalination of seawater for use for industrial purposes.

The adopted amendment implements TWC, §11.1405 and §18.003 and House Bill 2031 passed by the 84th Texas Legislature, 2015.

§295.302.Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater.

(a) An application for diversion of seawater from a bay or arm of the Gulf of Mexico for industrial purposes or for diversion of marine seawater must be submitted in accordance with §295.2 of this title (relating to Preparation of Application) and include, for each applicant, the full name, post office address, telephone number, and federal identification number. If the applicant is a partnership, it shall be designated by the firm name followed by the words "a partnership." If the applicant is acting as trustee for another, it shall be designated by the trustee's name followed by the word "trustee." If someone other than the named applicant executes the application, the name, position, post office address, and telephone number of the person executing the application shall be given.

(b) The application shall include the signature of the applicant in accordance with §295.14 of this title (relating to Signature of Applicant). Each applicant shall subscribe and swear to the application before any person entitled to administer oaths, who shall also sign his or her name and affix his or her seal of office to the application.

(c) The application shall state the location of point(s) of diversion and provide latitude and longitude coordinates in decimal degrees to six decimal places for each point.

(d) The total amount of marine seawater or seawater from a bay or arm of the Gulf of Mexico to be diverted and used shall be stated in definite terms, i.e., a definite number of acre-feet annually and the application shall state the maximum rate of diversion in gallons per minute or cubic feet per second for each diversion point.

(e) The application shall state each purpose of use in definite terms. If the application requests authorization to use marine seawater for multiple purposes, the application shall expressly state an annual amount of marine seawater to be used for the multiple purposes as well as for each purpose of use.

(f) The applicant shall provide evidence that the marine seawater or seawater diverted from a bay or arm of the Gulf of Mexico will be treated in accordance with applicable commission rules, based on the purpose for which the water is to be used, before it is used.

(g) The application must include a water conservation plan meeting the requirements contained in §297.208 of this title (relating to Consideration of Water Conservation).

(h) The application shall contain information describing how it addresses a water supply need in a manner that is consistent with the state water plan or the applicable approved regional water plan or, in the alternative, describe conditions that warrant a waiver of this requirement.

(i) The application must include a determination of the total dissolved solids concentration of the marine seawater or seawater at the water source based on monthly sampling and analysis, as described in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration), and provide the data collected to the commission.

(j) The application shall provide documentation that the applicant will take reasonable measures to minimize impingement and entrainment associated with the diversion of marine seawater or seawater as described in §297.209 of this title (relating to Impingement and Entrainment).

(k) The application shall include:

(1) documentation that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) on the date that the application is submitted; or

(2) documentation of the results of consultation with the TPWD and the GLO regarding the point or points from which a facility the person proposes to construct may divert seawater.

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 April 24, 2020.

TRD-202001575

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 22, 2019

For further information, please call: (512) 239-1806

CHAPTER 297. WATER RIGHTS, SUBSTANTIVE

SUBCHAPTER K. DESALINATION, SUBSTANTIVE

30 TAC §297.202

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §297.202.

The amendment to §297.202 is adopted with change to the proposed text as published in the November 22, 2019, issue of the Texas Register (44 TexReg 7130). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

TPWD and GLO completed their study entitled Marine Seawater Desalination Diversion and Discharge Zones Study in September 2018 and developed a map depicting the diversion and discharge zones which is available on the GLO website in the Coastal Resources Management Viewer. The diversion zones created are applicable only to marine seawater. TPWD and GLO did not designate zones in bays or arms of the Gulf of Mexico where seawater could be diverted for industrial purposes.

This rulemaking implements the requirement in TWC, Chapter 18, for the commission to designate appropriate diversion zones by rule.

As part of this rulemaking, the commission adopts amendments to 30 TAC Chapter 295, Water Rights, Procedural; and 30 TAC Chapter 318, Marine Seawater Desalination Discharges, to designate appropriate diversion and discharge zones by rule.

Section Discussion

§297.202, Approval Criteria for Diversion of Marine Seawater and Seawater

The commission adopts the amendment to §297.202(5) which currently states that the commission shall grant an application for a water right to divert marine seawater or seawater for desalination under this subchapter only if the applicant has provided documentation of the results of the consultation with the TPWD and the GLO (required by current §295.302). Adopted §297.202(5) states that the commission shall grant an application for a water right to divert marine seawater or seawater for desalination under this subchapter only if the application includes documentation that the point(s) from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the TPWD and the GLO on the date that the application is submitted; or documentation of the results of the consultation with the TPWD and the GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes. The commission changed the word "approved" to the word "identified" in §297.202(5)(A) to better reflect the actions taken by TPWD and GLO in developing the study and made a non-substantive typographic correction to §297.202(5)(B).

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 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. HB 2031 required TPWD and GLO to jointly conduct a study to identify zones in the Gulf of Mexico that are appropriate for the diversion of marine seawater and the discharge of waste resulting from the desalination of marine seawater. TPWD and GLO were required to submit a report on the results of the study to the commission, and the commission by rule is required to designate appropriate diversion zones and discharge zones. The stated purpose of HB 2031 is to "streamline the regulatory process for and reduce the time required for and cost of marine seawater desalination." HB 2031 further states that "{t}he purpose of this Act is not to hinder efforts to conserve or develop other surface water supplies but rather to more fully explore and expedite the development of all of this state's water resources in order to balance this state's supply and demand for water, which is one of the most precious resources of this state." Therefore, the intent is not to protect the environment or reduce risks to human health from environmental exposure, but instead to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and to streamline the process for these permits. The adopted amendment in Chapter 297 streamlines the process by authorizing documentation that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones approved by the TPWD and the GLO on the date that the application is submitted or documentation of the results of the consultation with the TPWD and GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes.

Second, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rule does 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 amendment will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Takings Impact Assessment

The commission evaluated this adopted rulemaking and performed a preliminary assessment of whether the adopted rule constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rule is to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and streamline the process for these permits. The adopted rule will substantially advance this stated purpose by authorizing documentation that the point(s) from which a facility the person proposes to construct for diversion of marine seawater are within the zones approved by the TPWD and the GLO on the date that the application is submitted or documentation of the results of the consultation with the TPWD and GLO regarding the point(s) from which a facility the person proposes to construct may divert seawater for industrial purposes.

The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to the adopted rule because this rule does not impact private real property. In HB 2031, the legislature expressed that "{i}n this state, marine seawater is a potential new source of water for drinking and other beneficial uses. This state has access to vast quantities of marine seawater from the Gulf of Mexico." For marine seawater, there are no permanent water rights or private real property rights that have been granted for uses of the water in the Gulf of Mexico. For seawater in a bay or arm of the Gulf of Mexico, few water rights have been granted for this water. There is no potential for harm to other water rights by this rulemaking. The burden on private real property rights will be nonexistent to minimal because of the amount of water in the Gulf of Mexico or a bay or arm of the Gulf of Mexico. Diversions of seawater in a bay or arm of the Gulf of Mexico are also limited to industrial water and water for municipal and domestic needs cannot be taken from a bay or arm of the Gulf of Mexico under Chapter 295, Subchapter G.

Consistency with the Coastal Management Program

The commission reviewed the adopted 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, must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act implementation rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies.

Promulgation and enforcement of this rule will not violate or exceed any standards identified in the applicable CMP goals and policies. The adopted rule is consistent with these CMP goals and policies because this rule does not create or have a direct or significant adverse effect on any CNRAs, and because the adopted rule requires diversion to be located in an approved diveresion zone in the Gulf of Mexico or consultation with the TPWD and GLO regarding the location of any diversion point in a bay or arm of the Gulf of Mexico.

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

Public Comment

The commission held a public hearing on December 17, 2019. The comment period closed on January 6, 2020. The commission received no comments.

Statutory Authority

The adopted amendment implements TWC, §11.1405 and §18.003 and House Bill 2031 passed by the 84th Texas Legislature, 2015.

§297.202.Approval Criteria for Diversion of Marine Seawater and Seawater.

The commission shall grant an application for a water right to divert marine seawater or seawater for desalination under this subchapter only if:

(1) the application conforms to the requirements prescribed by §295.302 of this title (relating to Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater) and is accompanied by the prescribed fee;

(2) the point of diversion is located less than three miles seaward of any point located on the coast of this state; or the water contains a total dissolved solids concentration based on a yearly average of samples taken monthly at the water source of less than 20,000 milligrams per liter, in accordance with the requirements set out in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration);

(3) the diverted marine seawater or seawater is intended for a beneficial use and the marine seawater or seawater will be treated in accordance with applicable commission rules, based on the purpose for which the marine seawater or seawater is to be used, before it is used;

(4) the application is not detrimental to the public welfare;

(5) the applicant has provided documentation:

(A) that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) on the date that the application is submitted; or

(B) of the results of consultation with the TPWD and the GLO regarding the location of a facility the person proposes to construct for diversion of seawater;

(6) the application addresses a water supply need in a manner that is consistent with the state water plan and the relevant approved regional water plan unless the commission determines that new, changed, or unaccounted for conditions warrant waiver of this requirement; and

(7) the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation as defined by §297.1 of this title (relating to Definitions).

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 April 24, 2020.

TRD-202001578

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 22, 2019

For further information, please call: (512) 239-1806

CHAPTER 305. CONSOLIDATED PERMITS

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572.

The amendments to §§305.2, 305.62, 305.69, 305.70, and 305.172 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6802) and, therefore, will not be republished. The amendments to §305.401 and §305.572 are adopted with changes to the proposed text and, therefore, will be republished

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 321, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §§305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572 remove obsolete text and update cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as defining and using consistent terms and grammatical corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§305.2, Definitions

The commission adopts amended §305.2(15) to update the cross-reference from §39.7, which is concurrently adopted for repeal, to §39.407.

§305.62, Amendments

The commission adopts amended §305.62(c)(3) to update the cross-references from §50.45 and §39.151, which are concurrently adopted for repeal, to §50.145 and §39.551, respectively.

§305.69, Solid Waste Permit Modification at the Request of the Permittee

The commission adopts amended §305.69 to update cross-references to rules that are concurrently adopted for repeal. In §305.69(b)(1)(B), (c)(2) and (9), (d)(2), (f)(4), and (g)(1), the reference is updated from §39.13 to §39.413. In §305.69(c)(6) and (7), the reference is updated from §50.33 to §50.133. Additionally, in §305.69(d)(2)(A), the reference is updated from §39.11 to §39.411.

§305.70, Municipal Solid Waste Permit and Registration Modifications

The commission adopts amended §305.70(i) to restructure subsection (i) and update references for some requirements due to the adoption of the concurrent repeal of §39.106. The commission also adopts to remove a reference that the permittee or registrant must prepare a Notice of Application and Preliminary Decision. These changes are adopted to conform the section to current practice and for ease of understanding. In addition, the commission adopts amended §305.70(j) and (k) to replace the reference from §39.106, which is concurrently adopted for repeal, with references to §305.70(i).

§305.172, Determining Feasibility of Compliance and Adequate Operating Conditions

The commission adopts amended §305.172(6) to update the cross-reference from §39.13, which is concurrently adopted for repeal, to §39.413, and amended §305.172(11) to update the cross-reference from §50.33, which is concurrently adopted for repeal, to §50.133.

§305.401, Compliance Plan

The commission adopts amended §305.401 to remove references to obsolete text, which is concurrently adopted for repeal, and add references to current rules that apply to compliance plan applications.

At adoption, the commission amends §305.401 to conform references to Texas Register style requirements.

§305.572, Permit and Trial Burn Requirements

The commission adopts amended §305.572(b) to update the cross-reference from §39.13, which is concurrently adopted for repeal, to §39.413.

At adoption, the commission amends §305.401 to conform references to Texas Register style requirements.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references and removes obsolete language to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to §§305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Health and Safety Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendments to §§305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572 do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendments do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Sections 305.2, 305.62, 305.69, 305.70, 305.172, 305.401, and 305.572 are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §305.2

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

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 April 24, 2020.

TRD-202001629

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2020

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

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

30 TAC §§305.62, 305.69, 305.70

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

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 April 24, 2020.

TRD-202001630

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2020

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

SUBCHAPTER I. HAZARDOUS WASTE INCINERATOR PERMITS

30 TAC §305.172

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

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 April 24, 2020.

TRD-202001631

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2020

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

SUBCHAPTER L. GROUNDWATER COMPLIANCE PLAN

30 TAC §305.401

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

§305.401.Compliance Plan.

(a) In order to administer the groundwater protection requirements relating to compliance monitoring and corrective action for facilities that store, process, or dispose of hazardous waste in surface impoundments, waste piles, land treatment units, or landfills, and the requirements of §335.167 of this title (relating to Corrective Action for Solid Waste Management Units), the commission shall establish a compliance plan.

(b) The following rules pertaining to application, and notice and hearing shall be applicable in proceedings to establish the plan: §39.401 of this title (relating to Purpose); §39.403 of this title (relating to Applicability); §39.405 of this title (relating to General Notice Provisions); §39.407 of this title (relating to Mailing Lists); §39.409 of this title (relating to Deadline for Public Comment, and for Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing); §39.411 of this title (relating to Text of Public Notice); §39.413 of this title (relating to Mailed Notice); §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit); §39.419 of this title (relating to Notice of Application and Preliminary Decision); §39.420 of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision); §39.421 of this title (relating to Notice of Commission Meeting to Evaluate a Request for Reconsideration or Hearing on an Application); §39.423 of this title (relating to Notice of Contested Case Hearing); §39.425 of this title (relating to Notice of Contested Enforcement Case Hearing); §39.503 of this title (relating to Application for Industrial or Hazardous Waste Facility Permit); §39.509 of this title (relating to Application for a Class 3 Modification of an Industrial or Hazardous Waste Permit); §39.1005 of this title (relating to Notice of Class 1 Modification of an Industrial Solid Waste or Hazardous Waste Permit); §39.1007 of this title (relating to Notice of Class 2 Modification of an Industrial Solid Waste or Hazardous Waste Permit); §50.113 of this title (relating to Applicability and Action on Application); §50.115 of this title (relating to Scope of Contested Case Hearings); §50.117 of this title (relating to Commission Actions); §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing); §55.200 of this title (relating to Applicability); §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing); §55.203 of this title (relating to Determination of Affected Person); §55.205 of this title (relating to Request by Group or Association); §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing); §55.210 of this title (relating to Direct Referrals); §55.211 of this title (relating to Commission Action on Requests for Reconsideration and Contested Case Hearing); Chapter 281 of this title (relating to Applications Processing); §305.43 of this title (relating to Who Applies); §305.44 of this title (relating to Signatories to Applications); §305.47 of this title (relating to Retention of Application Data); §305.50 of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order); §305.53 of this title (relating to Application Fee ); §§305.122 - 305.124 of this title (relating to Characteristics of Permits; Reservation in Granting Permit; and Acceptance of Permit, Effect); and §305.128 of this title (relating to Signatories to Reports).

(c) Any investigation report to establish compliance monitoring or corrective action shall contain the information specified in the regulations contained in 40 Code of Federal Regulation (CFR) §270.14(c)(7) and (8), which are in effect as of September 9, 1987. The executive director may authorize, in writing, in advance the submittal of a proposed permit schedule for the submittal of an engineering feasibility plan as set forth in the regulations contained in 40 CFR §270.14(c)(7), which are in effect as of September 9, 1987. The executive director may also authorize, in writing, prior to the submittal of a complete permit application, the submittal of a schedule for the information required in the regulations contained in 40 CFR §270.14(c)(8)(iii) and (iv), as set forth in the regulations contained in 40 CFR §270.14(c)(8)(v), which are in effect as of September 9, 1987. The executive director may request information necessary to determine the appropriateness and extent of corrective action required by §335.167 of this title.

(d) The executive director shall prepare a draft compliance plan unless the executive director recommends not to approve the plan. The draft compliance plan shall be available for public review, and notice that the executive director has prepared such a plan will be given pursuant to §39.503 of this title . The draft compliance plan shall be filed with the commission to be included in its consideration of the approval of a compliance plan.

(e) The executive director shall prepare a technical summary which sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft compliance plan. The executive director shall send this summary together with the draft compliance plan to the applicant and, on request, to any other person. The summary shall include the following information, where applicable:

(1) a brief description of the type of facility or activity which is the subject of the draft compliance plan;

(2) the type and quantity of wastes, fluids, or pollutants which are being managed at the facility;

(3) a brief summary of the basis for the conditions of the draft compliance plan, including references to applicable statutory or regulatory provisions;

(4) a description of the procedures for reaching a final decision on the draft compliance plan, including procedures whereby the public may participate in the final decision; and

(5) the name and telephone number of a person in the commission to contact for additional information.

(f) The plan may be amended:

(1) when the corrective action program specified in the plan under §335.165 of this title (relating to Compliance Monitoring Program) has not brought the regulated unit into compliance with the groundwater protection standard within a reasonable time;

(2) when the plan requires a compliance monitoring program under §335.165 of this title, but monitoring data collected prior to permit issuance indicate that the facility is exceeding the groundwater protection standard. The sections of this chapter pertaining to major amendments shall be applicable to the foregoing amendments to the compliance plan.

(g) Whenever a facility is subject to permitting under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, and is further required under §§335.156 - 335.167 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; and Corrective Action Program) to conduct compliance monitoring or corrective action, processing of the permit application for the facility and the establishment of the compliance plan shall be consolidated in one proceeding.

(h) Nothing herein shall be construed to be inconsistent with the commission's authority under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, §8 and §8b.

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 April 24, 2020.

TRD-202001632

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2020

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

SUBCHAPTER Q. PERMITS FOR BOILERS AND INDUSTRIAL FURNACES BURNING HAZARDOUS WASTE

30 TAC §305.572

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

§305.572.Permit and Trial Burn Requirements.

(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 270 are adopted by reference, as amended and adopted in the CFR through August 1, 2005 (70 FedReg 44150) or as stated in paragraphs (1) - (5) of this subsection:

(1) 40 CFR §270.66(b) - Permit Operating Periods for New Boilers and Industrial Furnaces, except that any permit amendment or modification shall proceed according to the applicable requirements of Subchapter D of this chapter (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits);

(2) 40 CFR §270.66(c) - Requirements for Trial Burn Plans;

(3) 40 CFR §270.66(d) - Trial Burn Procedures, except 40 CFR §270.66(d)(3), and except that all required submissions must be certified on behalf of the applicant by the signature of a person authorized pursuant to §305.44 of this title (relating to Signatories to Applications);

(4) 40 CFR §270.66(e) - Special Procedures for DRE Trial Burns; and

(5) 40 CFR §270.66(f) - Determinations Based on Trial Burn.

(6) 40 CFR §270.235 - Options for Incinerators, Cement Kilns, Lightweight Aggregate Kilns, Solid Fuel Boilers, Liquid Fuel Boilers and Hydrochloric Acid Production Furnaces to Minimize Emissions from startup, shutdown, and malfunction events as amended through October 12, 2005 (70 FedReg 59402).

(b) With regard to trial burn notice procedures, the chief clerk shall send notice to the state senator and representative who represent the area in which the facility is or will be located, and to the persons listed in §39.413 of this title (relating to Mailed Notice) announcing the scheduled commencement and completion dates for the trial burn. The notice shall meet the requirements of 40 CFR §270.66(d)(3)(i) and (ii) as amended through December 11, 1995 (60 FedReg 63417). The applicant may not commence the trial burn until after the chief clerk has issued such notice. This subsection applies to initial trial burns and all other trial burns except those that are to be conducted within 180 days after permit modification covering the trial burn.

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 April 24, 2020.

TRD-202001633

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2020

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

CHAPTER 318. MARINE SEAWATER DESALINATION DISCHARGES

SUBCHAPTER A. GENERAL REQUIREMENTS FOR MARINE SEAWATER DESALINATION DISCHARGES

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the repeal of §318.9 and new §318.9.

The repeal of §318.9 is adopted without change to the proposal as published in the November 22, 2019, issue of the Texas Register (44 TexReg 7133) and, therefore will not be republished. New §318.9 is adopted with change to the proposed text as published in the November 22, 2019, issue of the Texas Register (44 TexReg 7133) and, therefore, will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

In 2015, the 84th Texas Legislature passed House Bill (HB) 2031. HB 2031 relates to the diversion, treatment, and use of marine seawater and the discharge of treated marine seawater and waste resulting from the desalination of marine seawater. In HB 2031, the legislature created new Texas Water Code (TWC), Chapter 18, to address marine seawater desalination projects.

Additionally, HB 2031 required the Texas Parks & Wildlife Department (TPWD) and the Texas General Land Office (GLO) to conduct a study to identify zones in the Gulf of Mexico that are appropriate for the diversion of marine seawater and the discharge of waste resulting from the desalination process. The commission must adopt rules designating diversion and discharge zones by September 1, 2020. Until such time as the commission adopts rules designating diversion and discharge zones, an applicant for a permit to divert marine seawater or discharge waste resulting from the desalination process must consult with the TPWD and the GLO regarding the point(s) of diversion and discharge.

TPWD and GLO completed their study entitled Marine Seawater Desalination Diversion and Discharge Zones Study in September 2018 (TPWD/GLO study) and developed a map depicting the diversion and discharge zones which is available on the GLO website on the Coastal Resource Management Viewer (CRM Viewer).

This rulemaking implements the requirement in TWC, Chapter 18, for the commission to designate appropriate discharge zones by rule.

As part of this rulemaking, the commission adopts the amendments to 30 TAC Chapter 295, Water Rights, Procedural; and, 30 TAC Chapter 297, Water Rights, Substantive, to designate appropriate diversion zones by rule.

Section by Section Discussion

§318.9, Discharge Zones for Near-Shore and Off-Shore Discharges

The commission adopts the repeal of §318.9, which requires applicants for near-shore and off-shore discharges from marine seawater desalination facilities to consult with TPWD and GLO regarding the discharge location which is required by TWC, §18.005(h) until the commission adopts rules under TWC, §18.005(g) designating discharge zones.

The commission adopts a new §318.9(a), which requires marine seawater desalination facilities for near-shore and off-shore discharges to locate their outfalls within a discharge zone identified in the TPWD/GLO study and depicted in the CRM Viewer. The commission clarified that the near-shore and off-shore discharges referenced in this subsection are those that are authorized under the expedited procedures in Chapter 318. The commission also changed the word "recommended" to the word "identified" in §318.9(a) to better reflect the actions taken by TPWD and GLO in developing the study.

The commission adopts a new §318.9(b), which clarifies that discharges of wastewater resulting from the desalination of marine seawater may be located outside of the TPWD / GLO identified discharge zones when authorized under the requirement of 30 TAC Chapter 305 and TWC, Chapter 26.

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 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. HB 2031 required TPWD and GLO to jointly conduct a study to identify zones in the Gulf of Mexico that are appropriate for the diversion of marine seawater and the discharge of waste resulting from the desalination of marine seawater. TPWD and GLO were required to submit a report on the results of the study to the commission, and the commission by rule is required to designate appropriate diversion zones and discharge zones. The stated purpose of HB 2031 is to "streamline the regulatory process for and reduce the time required for and cost of marine seawater desalination." HB 2031 further states that "{t}he purpose of this Act is not to hinder efforts to conserve or develop other surface water supplies but rather to more fully explore and expedite the development of all of this state's water resources in order to balance this state's supply and demand for water, which is one of the most precious resources of this state." Therefore, the intent is not to protect the environment or reduce risks to human health from environmental exposure, but instead to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and to streamline the process for these permits. The adopted rulemaking streamlines the process by authorizing marine seawater desalination facilities for near-shore and off-shore discharges to locate their outfalls within a discharge zone identified in the TPWD/GLO study and depicted in the CRM Viewer.

Second, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rulemaking does 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 rulemaking will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted rulemaking will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Takings Impact Assessment

The commission evaluated this adopted rulemaking and performed a preliminary assessment of whether this adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the rulemaking is to add procedures for the development of plentiful and cost-effective water supplies to meet the ever increasing demand for water and streamline the process for these permits. The adopted rulemaking will substantially advance this stated purpose by requiring marine seawater desalination facilities for near-shore and off-shore discharges to locate their outfalls within a discharge zone identified in the TPWD/GLO study and depicted in the CRM Viewer

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to this adopted rulemaking because these rules do not impact private real property. In HB 2031, the legislature expressed that "{i}n this state, marine seawater is a potential new source of water for drinking and other beneficial uses. This state has access to vast quantities of marine seawater from the Gulf of Mexico." For marine seawater, there are no permanent water rights or real property rights that have been granted for use of the water in the Gulf of Mexico. There is no potential for harm to other water rights by this rulemaking. The burden on private real property rights will be nonexistent to minimal because of the amount of water in the Gulf of Mexico.

Consistency with the Coastal Management Program

The commission reviewed the adopted 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, must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rulemaking in accordance with Coastal Coordination Act implementation rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies.

CMP goals applicable to the adopted rules include: 1) to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs); and, 2) to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone. CMP policies applicable to the adopted rulemaking includes: discharges must comply with water quality-based effluent limits; discharges that increase pollutant loadings to coastal waters must not impair designated uses of coastal waters and must not significantly degrade coastal water quality, unless necessary for important economic or social development; and to the greatest extent practicable, new wastewater outfalls must be located where they will not adversely affect critical areas.

Promulgation and enforcement of this rulemaking will not violate or exceed any standards identified in the applicable CMP goals and policies. The adopted rulemaking is consistent with these CMP goals and policies because this rulemaking does not create or have a direct or significant adverse effect on any CNRAs, and because the adopted rulemaking does not allow a discharge from marine seawater desalination projects into or adjacent to water in the state, except in accordance with an individual permit issued by the commission. Individual permits issued under this adopted rulemaking will include effluent limitations to ensure compliance with water quality standards. The adopted rulemaking requires wastewater discharges to be located in an approved discharge zone in the Gulf of Mexico.

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

Public Comment

The commission held a public hearing on December 17, 2019. The comment period closed on January 6, 2020. The commission received no comments.

30 TAC §318.9

Statutory Authority

The repeal is adopted under Texas Water Code (TWC), §5.013 concerning the commission's general jurisdiction; TWC, §5.102, concerning the general powers of the commission; TWC, §5.103, concerning the adoption of rules by the commission; TWC, §5.105, concerning the commission's approval of general policy; TWC, Chapter 18, concerning marine seawater desalination projects; TWC, §26.011, concerning the commission's general authority to adopt rules for waste discharge or impending waste discharges under TWC, Chapter 26; TWC, §26.027, concerning the commission's authority to issue permits for the discharge of waste into or adjacent to water in the state; and TWC, §26.041, concerning the commission's authority to prevent a discharge of waste that is injurious to public health.

The adopted repeal implements TWC, §18.005 and House Bill (HB) 2031 passed by the 84th Texas Legislature, 2015.

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 April 24, 2020.

TRD-202001581

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 22, 2019

For further information, please call: (512) 239-1806

30 TAC §318.9

Statutory Authority

The new section is adopted under Texas Water Code (TWC), §5.013, concerning the commission's general jurisdiction; TWC, §5.102, concerning the general powers of the commission; TWC, §5.103 concerning the adoption of rules by the commission; TWC, §5.105, concerning the commission's approval of general policy; TWC, Chapter 18, concerning marine seawater desalination projects; TWC, §26.011, concerning the commission's general authority to adopt rules for waste discharge or impending waste discharges under TWC, Chapter 26; TWC, §26.027, concerning the commission's authority to issue permits for the discharge of waste into or adjacent to water in the state; and TWC, §26.041, concerning the commission's authority to prevent a discharge of waste that is injurious to public health.

The adopted new section implements TWC, §18.005, and House Bill 2031 passed by the 84th Texas Legislature, 2015.

§318.9.Discharge Zones for Near-Shore and Off-Shore Discharges.

(a) For near-shore discharges or off-shore discharges that are authorized under the expedited procedures in this chapter, the point at which a facility may discharge wastewater resulting from the desalination of marine seawater must be located in a discharge zone identified and depicted by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) pursuant to Marine Seawater Desalination Diversion and Discharge Zones Study (September 2018) as amended, available on the TPWD website, and as depicted on the Coastal Resources Management Viewer, on the GLO website.

(b) Discharges of wastewater resulting from the desalination of marine seawater that are not located in a discharge zone must be authorized under the requirements in Chapter 305 of this title (relating to Consolidated Permits) and Texas Water Code, Chapter 26.

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 April 24, 2020.

TRD-202001583

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 22, 2019

For further information, please call: (512) 239-1806

CHAPTER 321. CONTROL OF CERTAIN ACTIVITIES BY RULE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§321.97, 321.212, and 321.253.

The amendments to §321.97 and §321.253 are adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6822) and, therefore, will not be republished. The amendment to §321.212 is adopted with change to the proposed text and, therefore, will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 330 - 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The commission adopts amendments to §§321.97, 321.212, and 321.253 to update cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

The commission adopts non-substantive changes, such as grammatical corrections. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§321.97, Motion for Reconsideration

The commission adopts amended §321.97 to update the title of the section and the cross-reference from §50.39(b) - (f), which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision).

§321.212, Purpose and Applicability

The commission adopts amended §321.212(a) to update the cross-reference from Chapter 50, Subchapter C, which is concurrently adopted for repeal, to Chapter 50, Subchapter G.

At adoption, the commission amends §321.212 to conform references to Texas Register style requirements.

§321.253, Purpose and Applicability

The commission adopts amended §321.253(a) to update the cross-reference from Chapter 50, Subchapter C, which is concurrently adopted for repeal, to Chapter 50, Subchapter G.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Sections 321.97, 321.212, and 321.253 are not applicable requirements under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

SUBCHAPTER F. SHRIMP INDUSTRY

30 TAC §321.97

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; and TWC, §§5.013, 5.102, 5.103, 5.122, and 26.011.

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 April 24, 2020.

TRD-202001634

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER L. DISCHARGES TO SURFACE WATERS FROM MOTOR VEHICLES CLEANING FACILITIES

30 TAC §321.212

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; and TWC, §§5.013, 5.102, 5.103, 5.122, and 26.011.

§321.212.Purpose and Applicability.

(a) The purpose of this subchapter is to regulate by rule the surface discharge to water in the state of facility wastewater from motor vehicles cleaning facilities in accordance with the effluent limitations, monitoring requirements, and other conditions set forth herein. Certificates of registration issued under this subchapter are subject to Chapter 50, Subchapter G of this title (relating to Action by the Executive Director). Except as provided by §321.219 of this title (relating to Enforcement and Revocation) and except as provided by subsection (e) of this section, this rule regulates the following type of facilities which in a given month discharge, on average, more than 5,000 gallons per day of operation:

(1) Establishments primarily engaged in washing, waxing, and polishing motor vehicles. These type of facilities are classified as Standard Industrial Classification code 7542.

(2) Companies, governmental entities, taxi companies, parcel delivery companies, or similar entities that have their own motor vehicle cleaning facilities.

(3) This subchapter only applies to the discharge of wastewater generated from washing the exterior of vehicles.

(4) This subchapter does not apply to establishments, companies, or entities engaged in motor vehicle washing when the vehicles being washed are used for any of the following:

(A) transportation of municipal or industrial solid waste, including hazardous waste;

(B) transportation of hazardous materials or vehicles subject to placarding or labeling because of such transportation;

(5) This subchapter does not apply to establishments, companies, or entities engaged in motor vehicle washing when the vehicles being washed consist of the following types:

(A) semi-tractor trailer vehicles or similar carriers involved in transportation activities described in paragraph (4)(A) and (B) of this subsection.

(B) vehicles, trucks, or other equipment involved in transportation which, in the judgement of the executive director, has the potential to release toxic substances when the equipment's exterior is washed.

(b) Discharges are allowable under this subchapter only by those registrants of facilities which have a certificate of registration issued by the executive director under §321.213 of this title (relating to Certificate of Registration and Public Notice), §321.215 of this title (relating to General Requirements for Discharge), and §321.216 of this title (relating to Specific Requirements for Discharge). For new facilities, a certificate of registration issued by the executive director under §§321.213, 321.215, and 321.216 of this title shall be obtained prior to discharge of wastewater from the subject facility.

(c) Facilities which do not meet the requirements of §321.215 and §321.216 of this title and do not discharge or transport facility wastewater to a publicly owned treatment works (POTW) which has a wastewater discharge permit issued by the agency must apply for an emergency order, temporary order, or permit as provided by Chapter 305, Subchapter B of this title (relating to Emergency Orders, Temporary Orders, and Executive Director Authorizations) for the discharge of wastewater into or adjacent to water in the state.

(d) If the executive director denies a registration application under this subchapter, the facility must obtain a permit pursuant to the Texas Water Code, Chapter 26.

(e) No motor vehicle cleaning facility may obtain registration under this subchapter, if it is located within the service area of a POTW or within a similar service area which provides for the collection and disposal of wastewater. No self-service or coin-operated motor vehicle cleaning facility may obtain registration under this chapter. Such facilities must either discharge facility wastewater into the POTW, obtain authorization by individual permit issued pursuant to Chapter 305 of this title (relating to Consolidated Permits), or otherwise dispose of wastewater in a manner which complies with commission regulations.

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 April 24, 2020.

TRD-202001635

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER N. HANDLING OF WASTES FROM COMMERCIAL FACILITIES ENGAGED IN LIVESTOCK TRAILER CLEANING

30 TAC §321.253

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; and TWC, §§5.013, 5.102, 5.103, 5.122, and 26.011.

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 April 24, 2020.

TRD-202001636

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 330. MUNICIPAL SOLID WASTE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§330.57, 330.69, and 330.411.

The amendment to §330.411 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6825) and, therefore, will not be republished. The amendments to §330.57 and §330.69 are adopted with changes to the proposed text and, therefore, will be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The adopted rulemaking is intended to update some of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 331, 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendments to §§330.57, 330.69, and 330.411 replace obsolete text and update cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section by Section Discussion

§330.57, Permit and Registration Applications for Municipal Solid Waste Facilities

The commission adopts amended §330.57(i)(3)(C) to update the reference to the commission's Office of Public Assistance to the Public Education Program.

At adoption, the commission amends §330.57 to conform references to Texas Register style requirements.

§330.69, Public Notice for Registrations

The commission adopts amended §330.69(b) to update the cross-reference from §39.501(e)(3) and (4) to §39.501(e)(5) and (6). The commission also adopts amended §330.69(b) to remove obsolete text regarding the applicability of the section for registrations filed before amendments to Chapter 330 were adopted in 2006.

At adoption, the commission amends §330.69 to conform references to Texas Register style requirements.

§330.411, Assessment of Corrective Measures

The commission adopts amended §330.411(d) to update the cross-reference from §39.501(e)(3) to §39.501(e)(5).

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§330.57, 330.69, and 330.411 are procedural in nature and are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do they 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendments to§§330.57, 330.69, and 330.411 do not exceed an express requirement of state law or a requirement of a delegation agreement and were not developed solely under the general powers of the agency but are authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

SUBCHAPTER B. PERMIT AND REGISTRATION APPLICATION PROCEDURES

30 TAC §330.57, §330.69

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapters L and M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

§330.57.Permit and Registration Applications for Municipal Solid Waste Facilities.

(a) Permit application. The application for a municipal solid waste facility is divided into Parts I - IV. Parts I - IV of the application shall be required before the application is declared administratively complete in accordance with Chapter 281 of this title (relating to Applications Processing). The owner or operator shall submit a complete application, containing Parts I - IV, before a hearing can be conducted on the technical design merits of the application. An owner or operator applying for a permit may request a land-use only determination. If the executive director determines that a land-use only determination is appropriate, the owner or operator shall submit a partial application consisting of Parts I and II of the application. The executive director may process a partial permit application to the extent necessary to determine land-use compatibility alone. If the facility is determined to be acceptable on the basis of land use, the executive director will consider technical matters related to the permit application at a later time. When this procedure is followed, an opportunity for a public hearing will be offered for each determination in accordance with §39.419 of this title (relating to Notice of Application and Preliminary Decision). A complete application, consisting of Parts I - IV of the application, shall be submitted based upon the results of the land-use only public hearing. Owners or operators of Type IAE and Type IVAE municipal solid waste landfill units are required to submit all parts of the application except for those items pertaining to Subchapters H and J of this chapter (relating to Liner System Design and Operation; and Groundwater Monitoring and Corrective Action). Owners or operators of Type IAE and Type IVAE municipal solid waste landfill units are exempt from the geology report requirements of §330.63(e) of this title (relating to Contents of Part III of the Application) except for the requirement to submit a soil boring plan in accordance with §330.63(e)(4) and (e)(4)(A) of this title, and the information requested in §330.63(e)(6) of this title.

(b) Registration application. A registration application for a municipal solid waste facility is also divided into Parts I - IV, but is not subject to a hearing request or to the administrative completeness determinations of Chapter 281 of this title.

(1) Part I of the application consists of the information required in §281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits), §305.45 of this title (relating to Contents of Application for Permit), and §330.59 of this title (relating to Contents of Part I of the Application).

(2) Part II of the application describes the existing conditions and character of the facility and surrounding area. Part II of the application shall consist of the information contained in §330.61 of this title (relating to Contents of Part II of the Application). Parts I and II of a permit application must provide information relating to land-use compatibility under the provisions of Texas Health and Safety Code, §361.069. Part II may be combined with Part I of the application or may be submitted as a separate document. An owner or operator must submit Parts I and II of the permit application before a land-use determination is made in accordance with subsection (a) of this section.

(3) Part III of the application contains design information, detailed investigative reports, schematic designs of the facility, and required plans. Part III shall consist of the documents required in §330.63 of this title.

(4) Part IV of the application contains the site operating plan that shall discuss how the owner or operator plans to conduct daily operations at the facility. Part IV shall consist of the documents required in §330.65 of this title (relating to Contents of Part IV of the Application).

(d) Required information. The information required by this subchapter defines the basic elements for an application. All aspects of the application and design requirements must be addressed by the owner or operator, even if only to show why they are not applicable for that particular site. It is the responsibility of the applicant to provide the executive director data of sufficient completeness, accuracy, and clarity to provide assurance that operation of the site will pose no reasonable probability of adverse effects on the health, welfare, environment, or physical property of nearby residents or property owners. Failure of the owner or operator to provide complete information as required by this chapter may be cause for the executive director to return the application without further action in accordance with §281.18 and §281.19 of this title (relating to Applications Returned and Technical Review). Submission of false information shall constitute grounds for denial of the permit or registration application.

(e) Number of copies.

(1) Applications shall be initially submitted in four copies. The owner or operator shall furnish up to 18 additional copies of the application for use by required reviewing agencies, upon request of the executive director.

(2) For permit applications initially submitted to the executive director, the owner or operator shall also furnish Parts I and II, and any subsequent revisions to Parts I and II, to the regional council of governments.

(f) Preparation. Preparation of the application must conform with Texas Occupations Code, Texas Engineering Practice Act, Chapter 1001 and Texas Geoscience Practice Act, Chapter 1002.

(1) The responsible engineer shall seal, sign, and date the title page of each bound engineering report or individual engineering plan in the application and each engineering drawing as required by Texas Engineering Practice Act, §15c, and in accordance with 22 TAC §137.33 (relating to Sealing Procedures).

(2) The responsible geoscientist shall seal, sign, and date applicable items as required by Texas Geoscience Practice Act, §6.13(b), and in accordance with 22 TAC §851.156 (relating to Professional Geoscientist Seals and Geoscience Firm Identification).

(3) Applications that have not been sealed shall be considered incomplete for the intended purpose and shall be returned to the owner or operator.

(g) Application format.

(1) Applications shall be submitted in three-ring, "D"-ring, loose-leaf binders.

(2) The title page shall show the name of the project; the municipal solid waste permit application number, if known; the name of the owner and operator; the location by city and county; the date the part was prepared; and, if appropriate, the number and date of the revision. It shall be sealed as required by the Texas Engineering Practice Act.

(3) The table of contents shall list and give the page numbers for the main sections of the application. It shall be sealed as required by the Texas Engineering Practice Act.

(4) The narrative of the report shall be printed on 8-1/2 by 11 inches white paper. Drawings or other sheets shall be no larger than 11 by 17 inches so that they can be reproduced by standard office copy machines.

(5) All pages shall contain a page number and date.

(6) Revisions shall have the revision date and note that the sheet is revised in the header or footer of each revised sheet. The revised text shall be marked to highlight the revision.

(7) Dividers and tabs are encouraged.

(h) Application drawings.

(1) All information contained on a drawing shall be legible, even if it has been reduced. The drawings shall be 8-1/2 by 11 inches or 11 by 17 inches. Standard-sized drawings (24 by 36 inches) folded to 8-1/2 by 11 inches may be submitted or required if reduction would render them illegible or difficult to interpret.

(2) If color coding is used, it should be legible and the code distinct when reproduced on black and white photocopy machines.

(3) Drawings shall be submitted at a standard engineering scale.

(4) Each drawing shall have a:

(A) dated title block;

(B) bar scale at least one-inch long;

(D) responsible engineer's or geoscientist's seal, if required; and

(E) drawing number and a page number.

(5) Each map or plan drawing shall also have:

(A) a north arrow. Preferred orientation is to have the north arrow pointing toward the top of the page;

(B) a reference to the base map source and date, if the map is based upon another map. The latest published edition of the base map should be used; and

(6) Match lines and section lines shall reference the drawing where the match or section is shown. Section drawings should note from where the section was taken.

(i) Posting application information.

(1) Upon submittal of an application, the owner or operator shall provide a complete copy of any application that requires public notice, except for authorizations at Type IAE and Type IVAE landfill facilities, including all revisions and supplements to the application, on a publicly accessible internet website, and provide the commission with the Web address link for the application materials. This internet posting is for informational purposes only.

(2) The commission shall post on its website the identity of all owners and operators filing such applications and the Web address link required by this subsection.

(3) For applications for new permits or major amendments, an owner or operator shall post notice signs at the site within 30 days of the executive director's receipt of an application. This sign posting is for informational purposes only. Signs must:

(A) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;

(B) identify as appropriate that the application is for a proposed permitted facility or an amendment to a permitted facility;

(C) include the words "For further information on how the public may participate in Texas Commission on Environmental Quality (TCEQ) permitting matters, contact TCEQ," the toll free telephone number for the Public Education Program, and the agency's website address;

(D) include the name and address of the owner or operator;

(E) include the telephone number of the owner or operator; and

(F) remain in place and legible until the close of the final comment period.

(4) Signs must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line parallel to a public highway, street, or road. This paragraph's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the permitted facility.

(5) The owner or operator shall also post signs at the facility in an alternative language when the alternative language requirements in §39.405(h)(2) of this title (relating to General Notice Provisions) are met.

(6) The executive director may approve variances from the requirements of paragraphs (3), (4), and (5) of this subsection if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of those paragraphs and alternative sign posting plans proposed by the owner or operator are at least as effective in providing notice to the public. Approval from the executive director under this paragraph must be received before posting alternative signs for purposes of satisfying the requirements of this subsection.

§330.69.Public Notice for Registrations.

(a) Notice to local governments. For mobile liquid waste processing unit registration applications only, upon filing a registration application, the owner or operator shall mail notice to the city, county, and local health department of any local government in which operations will be conducted notifying local governments that an application has been filed. Proof of mailing shall be provided to the executive director in the form of return receipts for registered mail. Mobile liquid waste processing unit registration applications are not subject to public meeting or sign-posting requirements under subsection (b) of this section.

(b) Opportunity for public meeting and posting notice signs. The owner or operator shall provide notice of the opportunity to request a public meeting and post notice signs for all registration applications not later than 45 days of the executive director's receipt of the application in accordance with the procedures contained in §39.501(c) of this title (relating to Application for Municipal Solid Waste Permit) and by posting signs at the proposed site. The owner or operator and the commission shall hold a public meeting in the local area, prior to facility authorization, if a public meeting is required based on the criteria contained in §55.154(c) of this title (relating to Public Meetings) or by Texas Health and Safety Code, §361.111(c). Notice of a public meeting shall be provided as specified in §39.501(e)(5) and (6) of this title. This section does not require the commission to respond to comments, and it does not create an opportunity for a contested case hearing. Applications for registrations filed after the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) become effective are subject to the 2006 Revisions requirements to provide notice of the opportunity to request a public meeting. The owner, operator, or a representative authorized to make decisions and act on behalf of the owner or operator shall attend the public meeting. A public meeting conducted under this section is not a contested case hearing under the Texas Government Code, Chapter 2001, Administrative Procedure Act. At the owner's or operator's expense, a sign or signs must be posted at the site of the proposed facility declaring that the application has been filed and stating the manner in which the commission and owner or operator may be contacted for further information. Such signs must be provided by the owner or operator and must substantially meet the following requirements.

(1) Signs must:

(A) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;

(B) be headed by the words "PROPOSED MUNICIPAL SOLID WASTE FACILITY";

(D) include the words "for further information contact";

(E) include the words "Texas Commission on Environmental Quality" and the address and telephone number of the appropriate commission permitting office;

(F) include the name of the owner or operator, and the address of the appropriate responsible official;

(G) include the telephone number of the owner or operator;

(H) remain in place and legible until the period for filing a motion to overturn has expired. The owner or operator shall provide a verification to the executive director that the sign posting was conducted according to the requirements of this section; and

(I) describe how persons affected may request that the executive director and applicant conduct a public meeting.

(2) Signs must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line paralleling a public highway, street, or road. This paragraph's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the registered facility.

(3) The owner or operator shall also post signs at the facility in an alternative language when the alternative language requirements in §39.405(h)(2) of this title (relating to General Notice Provisions) are met.

(4) The executive director may approve variances from the requirements of paragraphs (1) and (2) of this subsection if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of those paragraphs and alternative sign posting plans proposed by the owner or operator are at least as effective in providing notice to the public. Approval from the executive director under this paragraph must be received before posting alternative signs for purposes of satisfying the requirements of this paragraph.

(c) Notice of final determination. The executive director shall, after review of an application for registration, determine if the application will be approved or denied in whole or in part. In accordance with §50.133(b) of this title (relating to Executive Director Action on Application or WQMP Update), if the executive director acts on an application, the chief clerk shall mail or otherwise transmit notice of the action and an explanation of the opportunity to file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The chief clerk shall mail this notice to the owner and operator, the public interest counsel, to adjacent landowners as shown on the land ownership map and landowners list required by §330.59 of this title (relating to Contents of Part I of the Application), and to other persons who timely filed public comment in response to public notice.

(d) Motion to overturn. The owner or operator, or a person affected may file with the chief clerk a motion to overturn the executive director's action on a registration application, under §50.139 of this title. The criteria regarding motions to overturn shall be explained in public notices given under Chapter 39 of this title (relating to Public Notice) and §50.133 of this title.

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 April 24, 2020.

TRD-202001637

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

SUBCHAPTER J. GROUNDWATER MONITORING AND CORRECTIVE ACTION

30 TAC §330.411

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapters L and M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

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 April 24, 2020.

TRD-202001638

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 331. UNDERGROUND INJECTION CONTROL

SUBCHAPTER L. GENERAL PERMIT AUTHORIZING USE OF A CLASS I INJECTION WELL TO INJECT NONHAZARDOUS DESALINATION CONCENTRATE OR NONHAZARDOUS DRINKING WATER TREATMENT RESIDUALS

30 TAC §331.202

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §331.202.

The amendment to §331.202 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6831). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330, 332, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §331.202 updates cross-references.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§331.202, Public Notice, Public Meetings, and Public Comment

The commission adopts amended §331.202(c)(1) and (d)(4) to update the cross-references from §39.11, which is concurrently adopted for repeal, to §39.411.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §331.202 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates cross-references to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §331.202 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §331.202 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Section §331.202 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, and 27.019; and THSC, §361.024.

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 April 24, 2020.

TRD-202001639

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 332. COMPOSTING

SUBCHAPTER C. OPERATIONS REQUIRING A REGISTRATION

30 TAC §332.35

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §332.35.

The amendment to §332.35 is adopted without changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6834). The rule will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission is concurrently adopting amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330, 331, 334, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §332.35 updates an obsolete cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§332.35, Registration Application Processing

The commission adopts amended §332.35(e) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision). Additionally, the commission adopts amended §332.35(e) to improve readability.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §332.35 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §332.35 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §332.35 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 332.35 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

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 April 24, 2020.

TRD-202001640

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 334. UNDERGROUND AND ABOVEGROUND STORAGE TANKS

SUBCHAPTER K. STORAGE, TREATMENT, AND REUSE PROCEDURES FOR PETROLEUM-SUBSTANCE CONTAMINATED SOIL

30 TAC §334.484

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §334.484.

The amendment to §334.484 is adopted without change to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6837) and, therefore, will not be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments to 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 335, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications would be relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §334.484 updates an obsolete cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§334.484. Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities

The commission adopts amended §334.484(h) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision). Additionally, the commission adopts amended §334.484(h) to improve readability.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §334.484 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §334.484 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §334.484 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 334.484 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, 26.345; and TWC, Chapter 26, Subchapter I.

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 April 24, 2020.

TRD-202001641

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 335. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE

SUBCHAPTER A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL

30 TAC §335.21

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §335.21.

The amendment to §335.21 is adopted with changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6840). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, and 350, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §335.21 updates an obsolete cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

§335.21, Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations

The commission adopts amended §335.21(3) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision). Additionally, the commission adopts amended §335.21(3) to improve readability.

At adoption, the commission amends §335.21 to conform references to Texas Register style requirements.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §335.21 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §335.21 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §335.21 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 335.21 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, and 5.122; and THSC, §361.024.

§335.21.Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations.

The executive director will use the following procedures in evaluating applications for variances from classification as a solid waste, applications to classify particular enclosed flame combustion devices as boilers, and applications for non-waste determinations:

(1) the owner or operator must apply to the executive director for the variance. The application must address the relevant criteria contained in §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste) or §335.20 of this title (relating to Variance To Be Classified as a Boiler);

(2) the owner or operator must apply to the executive director for the non-waste determination. The application must address the relevant criteria referenced in §335.32 of this title (relating to Standards and Criteria for Non-Waste Determinations);

(3) the executive director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the recycler is located. The executive director will accept comment on the tentative decision for 30 days, and may also hold a public meeting upon request or at his discretion. The executive director will issue a final decision after receipt of comments and after the public meeting (if any). Any person affected by a final decision of the executive director may file with the chief clerk a motion to overturn, in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision);

(4) in the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in §§335.19, 335.20, or 335.32 of this title, upon which a variance or non-waste determination has been based, the applicant must send a written description of the change in circumstances to the executive director. The executive director may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination;

(5) variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, owners or operators of facilities must re-apply for a variance or non-waste determination. If an owner or operator of a facility re-applies for a variance or non-waste determination within six months, the owner or operator of the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on their re-application from the executive director; and

(6) owners or operators of facilities receiving a variance or non-waste determination must provide notification as required by §335.26 of this title (relating to Notification Requirements for Hazardous Secondary Materials).

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 April 24, 2020.

TRD-202001642

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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

CHAPTER 350. TEXAS RISK REDUCTION PROGRAM

SUBCHAPTER D. DEVELOPMENT OF PROTECTIVE CONCENTRATION LEVELS

30 TAC §350.74

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §350.74.

The amendment to §350.74 is adopted with changes to the proposed text as published in the November 8, 2019, issue of the Texas Register (44 TexReg 6842). The rule will be republished.

Background and Summary of the Factual Basis for the Adopted Rule

The adopted rulemaking is intended to update one of the commission's procedural rules and is not intended to impose any new procedural or substantive requirements.

In 1999, the 76th Texas Legislature enacted House Bill (HB) 801, which revised public participation in environmental permitting for certain permit applications declared administratively complete on or after September 1, 1999. The rulemaking to implement HB 801 (and other bills) consolidated the public participation rules across the agency and those rules have subsequently been amended to implement legislation and policy decisions of the commission. The commission necessarily retained procedural rules applicable to certain permit applications declared administratively complete before September 1, 1999, and to other actions of the commission.

As part of this rulemaking, the commission concurrently adopts amendments in 30 TAC Chapters 33, 35, 39, 50, 55, 60, 70, 80, 90, 205, 285, 294, 305, 321, 330 - 332, 334, and 335, and new sections in Chapter 39, to make necessary changes due to the adopted repeals. In addition, this rulemaking addresses public notice requirements for certain applications that are not subject to contested case hearing but are currently subject to rules in Chapter 39, Subchapters A and B, without regard to the specified date of administrative completeness. The public notice requirements for those applications are relocated to adopted new Chapter 39, Subchapter P. The adopted amendment to §350.74 updates a cross-reference.

The public's opportunity to participate in the permitting process will not change nor be affected in any way as a result of these rulemaking projects.

Section Discussion

The commission adopts non-substantive changes, such as defining acronyms. Since these changes are non-substantive, the changes are not specifically discussed in this preamble.

§350.74, Development of Risk-Based Exposure Limits

The commission adopts amended §350.74(j)(2)(K) to update the cross-reference from §50.39, which is concurrently adopted for repeal, to §50.139 (Motion to Overturn Executive Director's Decision).

At adoption, the commission amends §350.74 to conform references to Texas Register style requirements.

Final Regulatory Impact Determination

The commission reviewed the rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §350.74 is procedural in nature and is not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor does it 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. Rather, this rulemaking updates a cross-reference to ensure there is no confusion regarding the applicable rules for public participation for certain permit applications.

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 adopted amendment to §350.74 does not exceed an express requirement of state law or a requirement of a delegation agreement and was not developed solely under the general powers of the agency but is authorized by specific sections of the Texas Government Code and the Texas Water Code that are cited in the Statutory Authority section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

Takings Impact Assessment

The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007, is applicable. The adopted amendment to §350.74 does not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted amendment does not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

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

Effect on Sites Subject to the Federal Operating Permits Program

Section 350.74 is not an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program) and, therefore, no effect on sites subject to the Federal Operating Permits Program is expected.

Public Comment

The commission offered a public hearing on December 10, 2019. The comment period closed on December 16, 2019. No comments were received on the rulemaking.

Statutory Authority

The amendment is adopted under Texas Water Code (TWC), Chapter 5, Subchapter M; 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; 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; TWC, §5.122, which authorizes the commission to delegate uncontested matters to the executive director; TWC, §26.011, which authorizes the commission to maintain the quality of water in the state of Texas; and TWC, §27.019, which authorizes the commission to adopt rules to implement the statutes regarding injection wells. The amendment is also adopted under Texas Health and Safety Code (THSC), §361.011, which provides the commission's authority to manage solid waste; THSC, §361.017, which provides the commission's authority to manage industrial solid waste and hazardous municipal waste; THSC, §361.024 which authorizes the commission to adopt rules regarding the management and control of solid waste; and Texas Government Code, §2001.004, which requires state agencies to adopt procedural rules.

The rulemaking implements TWC, Chapter 5, Subchapter M; TWC, §§5.013, 5.102, 5.103, 5.122, 26.011, and 27.019; and THSC, §361.024.

§350.74.Development of Risk-Based Exposure Limits.

(a) General requirement. The person shall use the criteria provided in subsections (b) - (j) of this section and the risk-based exposure limit (RBEL) equations provided in the following figures, as applicable, to establish RBELs appropriate for the type of chemical of concern (COC), the complete and reasonably anticipated to be completed exposure pathways, receptors, and land uses. The person shall establish RBELs for carcinogenic COCs and noncarcinogenic COCs using the default exposure factors provided in the following figure for residents and commercial/industrial workers, unless the executive director approves the use of alternate exposure factors in accordance with subsection (j) of this section.

Figure: 30 TAC §350.74(a) (No change.)

(b) Air inhalation RBEL. The air inhalation RBEL (^Air RBEL_Inh ) is the protective concentration of a COC in air at the point of exposure (POE) for human inhalation.

(1) Under Tiers 2 and 3 as described in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation), the person may use the lower of available eight-hour time-weighted average occupational inhalation criteria (i.e., Occupational Safety and Health Administration Permissible Exposure Limits, or American Conference of Governmental Industrial Hygienists Threshold Limit Values), as ^Air RBEL_Inh for inhalation pathways for commercial/industrial workers within the limits of affected commercial/industrial properties which have a health and safety plan in place. The health and safety plan shall be designed to ensure compliance with the applicable occupational inhalation criteria and require the monitoring of COC levels in the working air environment, and specify actions that will be taken in the event of exceedance of the occupational inhalation criteria. When occupational inhalation criteria are used, the person shall provide documentation of the health and safety plan, certify that the plan is followed, and demonstrate that the off-site receptors are protected as required by §350.71(h) of this title (relating to General Requirements). The use of occupational inhalation criteria as RBELs shall require the person to comply with the institutional control requirements in §350.111(b) and (b)(14) of this title (relating to Use of Institutional Controls).

(2) The air RBELs may not exceed any other applicable federal or state air quality standards.

(c) Soil dermal contact RBEL. The soil dermal contact RBEL (^Soil RBEL_Derm ) is the protective concentration of a COC at the POE in soil based upon direct dermal contact to soil by humans. The soil dermal contact RBEL shall also be based on COC-specific values for dermal absorption fraction (ABS.d) and gastrointestinal absorption fraction (ABS_GI ) provided in the following figure, unless the executive director approves the use of alternate ABS.d and ABS_GI values in accordance with subsection (j)(1)(A) and (B) of this section. It is not necessary to calculate a soil dermal contact RBEL for COCs with vapor pressure in mm of Hg greater than or equal to 1.

Figure: 30 TAC §350.74(c) (No change.)

(d) Soil ingestion RBEL. The soil ingestion RBEL (^Soil RBEL_Ing ) is protective concentration of a COC at the POE in soil based upon human ingestion.

(e) Vegetable ingestion RBELs. The vegetable RBELs (^AbgVeg RBEL_Ing and ^BgVeg RBEL_Ing ) are the protective concentration of a COC in aboveground vegetables and below-ground vegetables, respectively, for ingestion by residents. The person shall establish RBELs for ingestion of aboveground vegetables for all carcinogenic and noncarcinogenic COCs which are metals. In addition, the person shall establish RBELs for ingestion of below-ground vegetables for all carcinogenic and noncarcinogenic COCs with a dimensionless Henry's Law Constant less than 0.03, as shown in the figure in §350.73(f) of this title (relating to Determination and Use of Human Toxicity Factors and Chemical Properties), when either of the following criteria are met:

(1) the COC is a metal; or

(2) the COC has a logarithmic octanol-water partition coefficient (Log K_ow ) greater than four as shown in the figure in §350.73(f) of this title ; or

(f) Groundwater ingestion RBEL.

(1) The groundwater ingestion RBEL (^GW RBEL_Ing ) is the protective concentration of a COC at the POE in groundwater based upon human ingestion of groundwater. However, if available, the person shall use the lower of the two values established under paragraphs (2) and (3) of this subsection instead.

(2) The person shall use the primary maximum contaminant level (MCL) as provided in 40 Code of Federal Regulations (CFR) Part 141, as amended, or the most currently available federal action level for drinking water (e.g., lead and copper) as the RBEL when available for the COC.

(3) The person shall use the secondary MCLs established for individual COCs as provided in 40 CFR Part 143, as amended, as RBELs, or other scientifically valid published criteria in cases where COCs are present at concentrations which present objectionable characteristics such as taste or odor (e.g., methyl tertiary butyl ether) under the following circumstances:

(A) when the COCs are present in class 1 groundwater;

(B) when the COCs are present in class 2 groundwater that is within 1/2 mile of a well used to supply drinking water and is also within or is likely to migrate, based upon the chemical properties of the COCs and the hydrogeology, to the groundwater production zone of such drinking water supply well; or

(g) Class 3 groundwater RBEL. The class 3 groundwater RBEL (^GW RBEL_Class
3 ) is the acceptable concentration of a COC at the POE in class 3 groundwater.

(h) Surface water RBEL. The surface water RBEL (^SW RBEL) is the protective concentration of a COC at the POE in surface water. To establish ^SW RBEL for a COC, the person shall determine the lowest value from paragraphs (1) - (5) of this subsection for each COC, unless the person has sufficient surface water quality information specific to the particular surface water body to support an adjustment to the RBEL in accordance with paragraph (6) of this subsection. The ^SW RBEL value determined pursuant to paragraphs (1) - (6) of this subsection may require modification in response to the requirements of paragraphs (7) and (8) of this subsection. The^SW RBEL value for a given COC shall be protective of relevant downgradient water bodies in consideration of the water body use (e.g., designated drinking water supply or sustainable fishery), the water body type (e.g., estuary or perennial freshwater stream), the standards applicable to the type of water body/use, and the fate and transport characteristics of the COC in question at the particular affected property.

(1) The person shall apply the lower of the acute or chronic criteria for fresh or marine waters as applicable, based on the classification of the surface water, to protect aquatic life as provided in §307.6, Table 1 of this title (relating to Toxic Materials), as amended. The person shall determine the applicability of aquatic life criteria related to the water body aquatic life use and flow conditions in accordance with the procedures contained in §§307.3, 307.4, and 307.6 of this title (relating to Definitions and Abbreviations; General Criteria; and Toxic Materials, respectively), and the agency's Implementation Procedures, as amended, as defined in §350.4 of this title (relating to Definitions and Acronyms), as amended. For fresh waters, the person shall calculate aquatic life criteria for metals with hardness-dependent criteria using the hardness value for the nearest downstream classified segment, as listed in the agency's Implementation Procedures, as amended. Where no value is provided in the Implementation Procedures, a hardness value of 50 mg/l CaCO₃ shall be used. When applicable, the person shall convert total metal concentrations in surface water or groundwater to dissolved concentrations as described in the agency's Implementation Procedures, as amended. The person may use the basin-specific pH values provided in §307.6, Table 2 of this title, as amended, relevant to the particular affected property for purposes of determining the appropriate values for the pH dependent criteria. The person shall use the total suspended solids concentration for the nearest classified segment, as listed in the agency's Implementation Procedures, as amended.

(2) The person shall apply the human health criteria to protect drinking water and fisheries as provided in Table 3 of §307.6 of this title, as amended. When applicable, the person shall convert total metal concentrations in surface water or groundwater to dissolved concentrations as described in the agency's Implementation Procedures, as amended. The person shall determine the applicability of human health criteria according to the water body uses (e.g., public water supply, sustainable fishery, incidental fishery, and contact recreation) in accordance with the procedures contained in §307.3 and §307.6 of this title, as amended, and the Implementation Procedures, as amended. When a water body is not being evaluated as a drinking water source, the person must determine the necessity to evaluate exposure pathways associated with contact recreation such as incidental ingestion of surface water and dermal contact with surface water. The person shall use the total suspended solids concentration for the nearest classified segment, as listed in the agency's Implementation Procedures, as amended.

(3) The person shall apply the effluent limitations specified in Texas Pollutant Discharge Elimination System (TPDES) General Permit Number TXG830000, as amended, for any release of groundwater or storm water that has been impacted by petroleum fuel (as defined in the general permit).

(4) The person shall apply United States Environmental Protection Agency guidelines or alternate provisions in accordance with §307.6(c)(7) of this title, as amended, when criteria for aquatic life protection are not provided for a COC in §307.6 of this title, Table 1, as amended. In addition, the person shall apply federal guidance criteria (i.e., lower of a federal numerical criterion, MCL, or equivalent state drinking water guideline) or alternate provisions in accordance with §307.6(d)(8) of this title, as amended, when human health criteria for a COC are not provided in Table 3 of §307.6 of this title, as amended.

(5) The person shall apply the numerical criteria, as appropriate, for chlorides, sulfates, total dissolved solids, and pH for classified segments as specified in §307.10(1) of this title (relating to Appendices A - G ), as amended.

(6) The person may apply additional provisions where data on surface water quality for a specific surface water body at the affected property is available or can be reasonably obtained.

(A) The person may determine property-specific hardness, based on sampling data, for calculating metals criteria in accordance with the procedures contained in the agency's Implementation Procedures, as amended.

(B) The person may determine property-specific total suspended solids, based on sampling data, for estimating ''dissolved'' metals in accordance with the Implementation Procedures, as amended.

(7) The additional numeric and narrative criteria listed in subparagraphs (A) and (B) of this paragraph may require development of a surface water RBEL (e.g., where a nutrient is a COC) or modification to the surface water RBEL (e.g., lower a RBEL value to minimize foaming on the water's surface) determined pursuant to paragraphs (1) - (5) of this subsection.

(A) General criteria related to aesthetic parameters, nutrient parameters, and salinity in accordance with §307.4(b), (e), and (g) of this title , as amended.

(B) General provisions related to the preclusion of adverse toxic effects on aquatic and terrestrial life, livestock, or domestic animals in accordance with §307.6(b) of this title, as amended.

(8) If the executive director determines that the release has the potential to lower the surface water dissolved oxygen, then the executive director may require the person to apply the dissolved oxygen criteria for classified segments specified in §307.10(1) of this title, as amended, or the dissolved oxygen criteria for unclassified waters specified in §307.10(4) of this title, as amended, §307.4(h) of this title, as amended, and §307.7(b)(3)(A) of this title (relating to Site Specific Uses and Criteria), as amended.

(i) Aesthetics. For COCs for which a RBEL cannot be calculated by the procedures of this section, or the RBEL concentration for the COC otherwise adversely impacts environmental quality or public welfare and safety, presents objectionable characteristics (e.g., taste, odor), or makes a natural resource unfit for use, the person shall comply with paragraphs (1) - (3) of this subsection as appropriate. For response actions which are triggered for an area solely for purposes of this subsection (i.e., there is no other human health or ecological hazard remaining), the executive director will evaluate the seriousness, probable longevity of the matter, and suitability of the proposed remedy with the landowner in order to site-specifically determine whether or not institutional controls and financial assurance are warranted. The person shall provide all information reasonably necessary to support such a determination to the executive director. The default presumption is that financial assurance and institutional controls are required for exposure prevention remedies. If the executive director determines that institutional controls and financial assurance are not warranted, then persons shall not be required to comply with the provisions of §§350.31(g), 350.33(e)(2)(C) and 350.111(b)(3) or (6) of this title (relating to General Requirements for Remedy Standards; Remedy Standard B; and Use of Institutional Controls), specifically relating to the physical control matters for the portion of affected property with the aesthetics issue.

(1) In accordance with §101.4 of this title (relating to Nuisance), as amended, the person may be required by the executive director to address COCs which present objectionable odors.

(2) The maximum total soil concentration of COCs which are liquid at standard temperature and pressure shall not exceed 10,000 mg/kg within the soil interval of 0 - 10 feet, unless it can be demonstrated that:

(A) no free liquids (e.g., no mobile NAPL) or sludges exist; or

(B) higher concentrations do not adversely impair surface use of the affected property.

(3) Other scientifically valid published criteria such as, but not limited to, non-COC specific secondary MCLs for water may be required by the executive director to be used as the RBEL.

(j) Requirements for variance to default RBEL exposure factors.

(1) Under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and with prior executive director approval, the person may vary the following default exposure factors shown in the figures in subsections (a) and (c) of this section based on conditions or exposure levels at a particular affected property and in accordance with the conditions specified. A person shall provide the supporting documentation to justify the use of such alternative factors to the executive director.

(A) Gastrointestinal absorption fraction (ABS_GI ). A person or the executive director may use an alternative scientifically justifiable gastrointestinal absorption fraction value. Only in cases where the gastrointestinal absorption fraction is less than 50% shall the oral slope factor and oral reference dose be adjusted using equation RBEL-2 as shown in the figure in subsection (a) of this section, as applicable, to calculate the corresponding dermal slope factor and dermal reference dose. The person shall not use the gastrointestinal absorption fraction to modify the oral slope factor or oral reference dose for any exposure pathway other than the dermal exposure pathway. In the event the executive director determines a more scientifically valid gastrointestinal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that value with a scientifically valid study or by other credible published authority.

(B) Dermal absorption fraction (ABS.d). A person or the executive director may conduct a scientifically valid study using property-specific soils or may use alternative scientifically justifiable dermal absorption values. In the event the executive director determines a more scientifically valid dermal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that fraction with a scientifically valid study using property-specific soils or by other credible published authority.

(C) Relative bioavailability factor (RBAF). A person or the executive director may conduct a scientifically valid bioavailability study using property-specific soils or may conduct mineralogical evaluations of the chemical form of a COC present in soils at the affected property. In the event the executive director determines a more scientifically valid relative bioavailability factor, that factor shall be presumed to be the appropriate relative bioavailability factor and the person shall use that factor unless a person rebuts that factor with a scientifically valid bioavailability study using property-specific soils, mineralogical evaluation of the chemical form of a chemical of concern present in soils at the affected property, or by other credible published authority.

(2) Under Tiers 2 or 3 as provided in §350.75 of this title , a person may request that the executive director allow a variance to the following default commercial/industrial exposure factors for the affected property as shown in the figure in subsection (a) of this section: averaging time for noncarcinogens (AT.w), exposure duration (ED.w), and exposure frequency (EF.w). This shall only be allowed for facilities that have or will have, as a condition of the approval of this variance, restricted property access. The executive director shall not delegate this decision to agency staff.

(A) The person shall submit information to the executive director which demonstrates that variance from the default exposure factors is supported by property-specific information; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The person shall also provide written concurrence from the landowner for the placement of the institutional control in the county deed records, as required in subparagraph (L) of this paragraph, unless the property is subject to zoning or governmental ordinance which is equivalent to the deed notice, Voluntary Cleanup Program certificate of completion or restrictive covenant that otherwise would have been required.

(B) The person requesting such variance shall provide public notification as described in subparagraphs (D) and (E) of this paragraph for any request to vary the default exposure factors at the same time that variance-based protective concentration levels (PCLs) are submitted to the executive director for approval. If the natural physical condition of the on-site commercial/industrial area for which the variance is sought essentially prohibits full commercial/industrial use (e.g., marshes and cliffs), and the variance would not necessitate a lesser commercial/industrial use of that area, then the executive director will determine the need for public notice on a site-specific basis for the prohibited use area. The person may request the executive director or his staff to review the variance-based PCLs or the variance request for completeness (e.g., administratively complete, mathematical accuracy, compliance with other PCL development procedures) in advance of initiating the public notification process. The required public notice shall be completed prior to consideration of the variance request for approval by the executive director. The public notice provisions may be performed in conjunction with or as part of another public participation/notification process required for permitting or other applicable state or federal statute or regulation provided the requirements of subparagraph (E) of this paragraph are also met. Additionally, an alternative mechanism that may exist under the other public participation/notification process which effectively provides broad public notice of the variance request, such as notification to an existing citizens' advisory board for the affected property/facility, may substitute for the requirements of subparagraph (D) of this paragraph, provided the completion of the notification is sufficiently documented.

(i) the name, address and telephone number of the person requesting the variance;

(ii) the address and the physical description for the location of the property and the agency case designation number;

(iii) the modified value(s) the person seeks to use and the associated default exposure factor(s) as shown in the figure in subsection (a) of this section without any statements or other indications that such variance has been approved or otherwise considered favorably by the executive director or the executive director's staff other than that it has been reviewed for completeness;

(iv) a clear and concise explanation as to the effect the variance will have on the future use of the subject property and on surrounding properties;

(v) a statement that more detailed information regarding the variance request is available for review at the agency's central office in Austin, Texas, 8:00 am - 5:00 pm Monday thru Friday; and

(vi) a notice to the public of the opportunity to submit written information, within 30 calendar days after the date of the initial published notice (publish the actual date), to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property.

(D) The notice shall be published in a newspaper distributed daily, if available, and generally circulated in the county or area where the property is located. The notice shall be published once a week for three weeks, with at least one of the notices appearing in a Sunday edition, if available.

(E) The notice shall be sent to the following persons in clauses (i) - (viii) of this subparagraph by certified mail, return receipt requested:

(i) all adjacent landowners;

(ii) the local municipality planning board or similar governmental unit, if applicable;

(iii) local taxing authorities;

(iv) the mayor and health authorities of the city in which the property is located, if applicable;

(v) the county judge and county health authority of the county in which the property is located;

(vi) the agency's Public Interest Counsel;

(vii) all persons or organizations who have requested the notice or expressed interest; and

(viii) other persons or organizations specified by the executive director.

(F) The person shall provide copies of each notice sent by mail, copies of the published notice, and copies of the signed publisher's affidavit for the initial notice to the agency's Austin office and to the appropriate agency region office within 10 calendar days after the initial publication and mailing. Copies of the signed publisher's affidavits for the subsequent notices shall be provided to the agency's Austin office and to the appropriate agency region office within 10 days of both subsequent notices.

(G) At the executive director's request, and at the expense of the person, the person shall schedule and hold a public meeting at a time and place which are convenient for persons identified in subparagraph (E) of this paragraph. The forum chosen for the meeting shall comply with the Americans with Disabilities Act. Prior to scheduling the public meeting, the person shall coordinate the scheduling of the public meeting with the executive director's office to ensure the availability of agency personnel for the meeting. The person shall confirm with the executive director's office the date, time, and location of the meeting not less than 15 days prior to the meeting. The meeting shall be open to the public to provide information on the request to vary the default exposure factors and to allow for comments by the public. The person shall again confirm with the executive director's office on the time and place of the meeting at least 72 hours prior to the meeting.

(H) In order to inform persons of the public meeting, the person shall, at least 30 calendar days prior to the public meeting, follow the notification process required in subparagraphs (C) - (F) of this paragraph with the following exceptions:

(i) the notice shall be supplemented to include the date, time, and location of the public meeting and to indicate that the meeting is open to the public for the purposes of providing information on the request to vary default exposure factors and to provide the public the opportunity to provide comments on the request;

(ii) the notice shall indicate that the public shall have 15 calendar days after the date of the public meeting to submit written information to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property; and

(iii) the notice by publication of the public meeting shall only be published once and shall be placed in a Sunday edition, if available.

(I) The executive director's decision on the request for a variance from the default exposure factors shall occur at least 15 calendar days after any public meeting or if no public meeting is held, at least 45 days after the date of the initial published notice. The executive director's decision shall be based upon property-specific data; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The executive director shall not consider the costs incurred for any actions taken by the person in anticipation that the variance would be approved by the executive director.

(J) At the same time that the executive director's decision is mailed to the person requesting the variance, a copy of this decision shall also be mailed to all persons identified in subparagraph (E) of this paragraph. The notice of the executive director's decision shall explain the method for submitting a motion for reconsideration of the executive director's decision by the commission.

(K) The person requesting the variance and persons identified in subparagraph (E) of this paragraph may file with the chief clerk a motion to overturn related to the request for variance, in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).

(L) A person who receives a variance from the default exposure factors shall comply with the institutional control requirements in §350.111(b), (b)(12), or (13) of this title (relating to Use of Institutional Controls), as applicable, and provide proof of compliance with the institutional control requirements within 90 days of the approval by the executive director of the response action completion report.

(3) The person shall not vary the following exposure factors shown in the figure in subsection (a) of this section.

(A) averaging time for residents for noncarcinogens (AT.A.res and AT.C.res) or carcinogens (ATc);

(B) body weight for adults and children (BW.A, BW.C, BW_(0<6), BW_(6<18), and BW_(18<30));

(D) exposure frequency for residents (EF.res);

(E) ingestion rate for soil, water, or vegetables (IRsoil.AgeAdj.res, IRsoil.C.res, IRsoil.w, IRw.AgeAdj.res, IRw.C.res, IRw.w, IRabg.AgeAdj.res, IRbg.AgeAdj.res, IRabg.C.res, IRbg.C.res);

(F) toxicity modifying factor (MF);

(G) skin surface area (SA.C.res, SA_(0<6), SA_(6<18) , SA _(18<30), SA.w);

(H) soil-to-skin adherence factors (AF.C.res, AF _(0<6) , AF_(6<18) , AF _(18<30) , and AF.w).

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 April 24, 2020.

TRD-202001643

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2020

Proposal publication date: November 8, 2019

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